The Ministry of Justice is consulting with public and private entities and the general public on whether to extend the application of the Freedom of Information Act 2000 (FOIA), using its powers under section 5 of the FOIA, to organisations that are not currently subject to the FOIA but which:

  • carry out functions of a public nature; or
  • who contract with public authorities to provide services which are functions of those public authorities.

The consultation paper solicits, through a number of specific questions, opinions on: 

  • whether the ambit of the FOIA should be extended at all;
  • if it is extended, which organisations or types of organisation should be included;
  • what factors should be taken into consideration before the FOIA is extended to an organisation, such as whether other organisations in the same sector are already subject to the FOIA, the size and nature of the organisation, what the effect would be on competition and level of existing regulation;
  • what alternatives to extension might be more appropriate; for example, compliance with a code of conduct.

The consultation paper emphasises that if any organisation were designated as subject to the FOIA, FOIA obligations would only attach to those contracted services which relate to the carrying out of a public function. It is not the intention, therefore, that if an organisation is designated as subject to the FOIA that FOIA obligations would apply to information held by a service provider for:

  • its own internal purposes; for example, it would not apply to its own IT or stationary services;
  • provision of services to private sector organisations; or
  • provision of services to a public authority where the services provided to that public authority are for the authority's internal purposes; for example, providing an internal IT service or stationary service to assist a public authority to carry out its public functions would not be caught. On the other hand, if a service provider is, for example, running a children's home, school or prison on behalf of a public authority (i.e. carrying out an actual function of a public authority for a public authority) this would be caught.

The consultation closes on 1 February 2008. If the consultation leads to a recommendation to extend the ambit of the FOIA, the intention is that there will be further consultation with affected organisations.