Extension to Transparency agenda and Freedom of Information
In March 2014, Justice Minister Simon Hughes MP stated: “We do intend to extend FoI (Freedom of Information) further as soon as it will be practical. We intend to publish a revised code of practice to make sure that those private companies that carry out public functions have freedom of information requirements in their contracts, and go further than that, and we hope that will be in place by the end of this year.”
Press comments as a result have referred to “a radical extension of FOI” to the private sector and guidelines so that more contracts include requirements to abide by FOI laws. Other commentators have even suggested that private businesses contracting to provide public services with public authorities should be directly subject to FOI.
It is not yet clear exactly what the Government envisages but private businesses working with the public sector must be increasingly prepared for the growing impact of FOI on those relationships. We anticipate a move to routine publication of redacted forms of contract and further expect moves to deliver far greater transparency in relation to actual contract performance thereafter.
The Transparency Agenda
The Coalition Government has done a great deal to promote and improve transparency in government and public life, particularly at central and local government level in England and Wales. Most private businesses who work with public sector partners will have noticed the increased expectation of transparency in the relationships, from liaison on information requests received, to pro active publication of redacted forms of the contracts following their completion.
Vastly more information is now disclosed and published than would have been the case in 2005 when the Freedom of Information Act 2000 (“FOI”) came into force. In our experience, driven by enforcement practices by the Information Commissioner’s office (“ICO”), disclosures and publications of information have increased each year since then and the ability to withhold information due to exemptions has been eroded year on year.
The perceived transparency gap
Despite this, some believe that there is a great loss of transparency where public functions are not carried out by a public authority internally but are instead carried out for it by a private business. This may be because where information is not in the actual possession of the public authority, it is not always clear that it is ‘held’ by that public authority and so accessible under FOIA. Great care will be needed when dealing with this area in the future.
There appears to be a perception in some quarters that excessive information is being wrongfully withheld on the basis of confidentiality or commercial sensitivity and that this needs to be moderated further.
Adding private contractors as public authorities
Section 5 FOI allows the Government to add private contractors as direct FOI public authorities by order of the Secretary of State if such a person: “(a) appears to the Secretary of State to exercise functions of a public nature, or (b) is providing under a contract made with a public authority any service whose provision is a function of that authority.”
In the event that the Ministry of Justice contacts any private business with a view to consulting it about becoming a public authority under section 5, it should take immediate legal advice to ensure it can make best use of that opportunity to try to negotiate the best possible outcome.
Codes of Practice and guidelines
The Ministry of Justice and / or the ICO can under FOIA issue certain codes of practice. In addition, under the Government’s transparency agenda, the Department for Communities and Local Government (“DCLG”) has also issued a recommended transparency code for local government. The Government proposes to make compliance with a revised version of this code mandatory by affected local government bodies in England and Wales under existing local government legislation – Government response available here.
Affected bodies must proactively publish certain details about procurements and contracts. This overlaps with the information which the ICO expects public authorities to proactively publish through their publication schemes.
The DCLG has, with the help of the Local Government Association, issued guidance on the publication of contract information, including suggested wording for websites and tenders in relation to the publication of contracts – available here.
Although the guidance indicates that account can still be taken of FOI exemptions, care will be needed as contractual provisions vary and by trying to facilitate the ability to publish information, some provisions may unintentionally remove the ability to rely on at least some exemptions.
Contractual obligations to comply with FOI should be treated with caution, as should any proposal to comply with the ‘spirit of FOI’ since only statutory compliance carries a defence to legal proceedings for breach of copyright or contractual confidence from FOI type disclosure.
The similar impact of the Environmental Information Regulations 2004 (“EIR”) should also not be forgotten, especially for those dealing with waste, energy, land, food, health and safety, planning, redevelopment or regeneration - these topics are more likely to be viewed as “environmental information” subject to the EIR. In that case, non disclosure must be in the public interest to be successful and there is a presumption that disclosure will be in the public interest, in which case the normal laws of confidence are overridden.