The Government is consulting on whether to exercise its power under section 5 of the Freedom of Information Act 2000 ("FOIA") to extend the statutory obligation to disclose information to two categories of organisations not yet directly affected by the Act. These are (i) private organisations that carry out "public functions" and (ii) those to whom public authorities have "contracted out" their functions. The effect of any section 5 order would be to designate the organisations in question as "public authorities" for the purposes of the Act, in respect of any information held by them relating to the relevant public functions or services. They would therefore be obliged to respond to requests for that information in the same way as other public authorities caught under the Act.

  • Organisations that could be affected include companies involved in PFIs and major public service contractors. In terms of identifying "public functions" the consultation paper indicates that the Government will take into account broadly similar factors as apply to the determination of susceptibility to judicial review and under the Human Rights Act 1998.
  • Affected organisations will face a potentially significant FOI costs burden. Existing public authorities may be concerned about the loss of control over information exchanged with the private sector. There may also be a concern that the imposition of this new burden may discourage some companies from entering into contracts with the public sector.

Background

The obligations in FOIA apply to "public authorities" which include:

  • bodies listed in Schedule 1 of the FOIA;
  • companies wholly owned by a public authority; or
  • bodies designated as public authorities under section 5 of the FOIA in relation to certain specified functions.

The Government has not as yet exercised its power to designate organisations under section 5 and is now considering whether to do so.

This consultation seeks views on which additional organisations and services should be covered by the FOIA (by way of a section 5 designation) and is part of a package of reforms that the Government hopes will enhance openness and increase public access to information.

Opponents to the proposal are concerned about the additional administrative and financial burdens that private sector organisations could face if they are brought within the FOI regime. Conversely, critics of the current regime argue that the narrow definition of "public authority" leads to loopholes and inconsistencies in the right to access information. For example, privately run prisons are not required to be FOI compliant, unlike their publicly operated counterparts. The extent to which information is available may therefore vary from region to region.

The consultation focuses on four key areas:

  • the merits of using the section 5 power to extend coverage of the FOIA;
  • criteria that could be used to determine whether an organisation should be subject to the FOIA because it is exercising functions of a public nature;
  • criteria that could be used to determine whether an organisation should be subject to the FOIA because it is providing services under contract with a public authority, where those services are a function of the public authority; and
  • the requirement under section 7 of the FOIA to specify which of the functions or services of a designated organisation should be covered and how this could be implemented.

"Functions of a public nature"

The Government has acknowledged that any attempt to define "functions of a public nature" is problematic, but sets out the following as relevant considerations:

  • the extent to which the body is publicly funded in carrying out the function;
  • the extent to which the body's activities have statutory underpinning;
  • whether the body exercises extensive or monopolistic powers, for example, by regulating entry to a trade, profession or sport;
  • whether the body's source of power is derived from more than voluntary submission to its jurisdiction, for example, if a party has no choice but to submit to its jurisdiction if it wishes to participate in a particular activity;
  • whether the body seeks to achieve some collective benefit for the public and is accepted by the public as having the authority to do so;
  • whether the body participates in a significant way in the social affairs of the nation, pursuant to the public interest; and
  • in relation to a regulatory organisation, but for the existence of that body, whether the government would inevitably have to intervene to regulate the activity in question.

The consultation also notes that a balance should be struck between the benefits of public access to the information and any negative impacts in terms of additional burdens on resources. A designated organisation should not be precluded from carrying out its public function as a result of designation. There is likely to be a higher public interest in accessing information related to organisations that are allocated a greater proportion of public funds.

"Contracted-out" services

The second type of organisation that may be caught by a section 5 designation is an organisation that, pursuant to a contract with a public authority, provides services which are a function of that authority.

It is important to note that not all contracts with public authorities will relate to their "functions". For example, if a local authority contracts with a private organisation to run some of its children's homes, these might be considered services whose provision was a function of the authority. On the other hand, a contract to provide stationery or IT equipment for purposes purely internal to the public authority might not. In considering whether an organisation is providing a service whose provision is a function of a public authority, the factors mentioned above, in relation to whether an organisation is exercising functions of a public nature, will be relevant.

Next steps

The consultation sets out five possible options, namely:

  • no extension to the current FOI regime by way of section 5 designation;
  • self-regulation by relevant organisations, with entities being encouraged to provide information on their public functions on a voluntary basis;
  • incorporation of information access obligations into contracts with organisations delivering public services, providing for information access only in relation to services provided under contract with public authorities;
  • introduction of a single section 5 order covering a specified set of organisations to increase public access to information to a limited extent; or
  • introduction of a series of section 5 orders to widen the coverage of the FOIA progressively over time.

The Government has invited consultees to suggest organisations that might be the subject of section 5 orders. However, before any designation the Government is required to consult proposed affected organisations directly.

The consultation runs until 1 February 2008.