In January 2008 we reported on the Government's consultation on its proposed extension of the Freedom of Information Act (FOIA) to (i) private organisations carrying out 'public functions' and (ii) companies to which public authorities 'contract out' their functions. The Government's response to this consultation has just been published. See http://www.justice.gov.uk/ consultations/docs/consultation-response-section5.pdf.
- The Government has identified 4 bodies or categories of body which it is proposing to include within the scope of FOIA subject to further consultation with them. These are the Financial Ombudsman Service (FOS), Association of Chief Police Officers (ACPO), the Universities and Colleges Admissions Service (UCAS) and Academy schools. The aim is to bring forward the necessary order early in the 2009/10 parliamentary session.
- If these bodies are designated as public authorities under the FOIA, they will have to provide information they hold in response to requests from the public. They will also have to put in place a 'publication scheme' setting out what information they make available proactively. Importantly, it appears that the duty will apply to all information held by the newly-designated public authorities which relates to their public functions, including information obtained or created by them before their designation under the Act.
- The response also indicates that the Government is still considering whether to further widen the scope of FOIA to cover additional types of body, including Network Rail and utility companies.
In the consultation document, the Government asked consultees to nominate organisations or bodies which they thought should be designated as public authorities for the purposes of FOIA. The response sets out a list of all those nominated, which includes those below.
Transport – several train companies, Association of Train Operating Companies, British Airport Authority, 2 airlines, National Express, Harbour Authorities and Network Rail
Representative/regulatory bodies - the British Standards Institute, Institute for Chartered Accountants in England and Wales, Solicitors Regulation Authority and the Law Society.
Utilities and Telecommunications - companies from the energy, telecommunications and water sectors
Housing/development – developers of land, Housing Associations, Urban development corporations, Registered Social Landlords
Other contractors – Nuclear Site Licence Companies, PFI contractors
Although at the moment the proposal is only to designate the 4 bodies referred to above, the consultation response gives some indication of the Government's intentions going forward.
In particular, a number of respondents suggested that utility companies responsible for supplying formerly nationalised services should be included, given the public interest in access to information about decisions regarding the delivery of their services. Since FOIA came into force, some information about the regulated utility sectors has been available from the regulators. However, the Government is "attracted" to bringing the utility companies themselves within the scope of the Act and will now carry out further consultation with them (and with Network Rail) to assess whether it would be appropriate to include some or all of them in a future designation or to extend the scope of the Act to cover them in some other way.
With regard to contractors, the position will be kept under review. In the meantime, public authorities are reminded to limit the application of confidentiality to contracts. Contractors themselves are encouraged voluntarily to adhere to the principles of FOIA.
Similarly, as to professional and regulatory bodies, the Government response notes that imposing a duty to disclose information may mean that members become reluctant to disclose information to the relevant body, jeopardising the proper performance of its functions. It has concluded that designation of such bodies is not appropriate at present. However, it expresses the wish that bodies will voluntarily adopt the Information Commissioner's model publication scheme and make some information available (as the Law Society currently does).
In summary, although the Government's proposals at the moment are fairly limited, those bodies referred to in the consultation response will want to keep a close eye on how matters develop since it seems that the scope of the Act may well be further extended in the future.