Freedom of Information in England - holding private contractors to account

With increased use of outsourcing, particularly in the NHS, campaigners want to bring private contractors under FoI legislation. At the same time the government is considering restricting access to information due to alleged abuse. Which direction should FoI be travelling?

Image: Truthout.org

The UK Freedom of Information Act has come under considerable scrutiny in the past 12 months. The House of Commons Justice Select Committee took a detailed look at how it works last year, followed by a government response in November and then a very thinly attended debate in Westminster Hall in January 2013. There seems to be two dilemmas emerging for the government-whether to expand FOI to other providers and how to clamp down on what it sees as misuse or abuse of the Act.

To expand or not?

The contracting out of services by public authorities leaves gaps in the coverage of FOI (see discussion here from the Justice Committee). Particular services and bodies run or carried out by private or non-state bodies, from free schools to private prisons, are not covered by FOI. The transparency and accountability FOI can bring then disappears.

A good example is Network Rail, which is not within the scope of the Act but commits to abiding by it. Enterprising journalists have tried making FOIs to rail providers with varying degrees of success. Michael Crick has had some success regarding rail fatalities while a Telegraph journalist has sought details of salaries to senior executives of rail providers (though one kindly obliged the other companies merely pointed out they were not subject to the Act). Others have fared well or not so well, being subject to the discretion of the body rather than the law. 

The concern is that with the rise of the ‘EasyCouncil’, the gaps in FOI will get bigger and our ability to trace what is being done and spent in our name smaller. As the Justice Committee put it ‘in a rapidly changing commissioning landscape this has the potential fundamentally to undermine the Act’.

Free schools, another body that has attracted considerable FOI attention, are perhaps typical of the problem. They are not subject to the Act until they exist, which some feel may be too late. Journalists and anti-free school campaigners have made FOI requests to the Department of Education to try to find out what schools are in the pipeline and who has applied to run them. This has resulted in a long battle over access amid concerns of prejudice and possible smears and threats.

The obvious solution to this problem would be to extend FOI to cover these bodies or at least their public work. Section 5 of the Act actually allows the government to do this. So all these private contractors and new bodies just need to be included in the Act. However, obvious does not mean easy, as the Justice Committee made clear. Extending the Act requires consultation and it is far from simple. Who should be included? To what extent? Is it necessary?

As a result FOI expansion is a little like House of Lords reform - promised by many but delivered by few. The Brown Government and now the Coalition, as well as the SNP in Scotland (covered by a separate Scottish Act) have all tried. But all have ran up against opposition from business who feel that, one, it is not necessary and, two, it is too expensive. In the case of Scotland the final consultation also indicated it would not be worthwhile - there could be so few requests it may not be worth the trouble.  This has not stopped the Labour party again committing to it.

Meanwhile, the Coalition has contented itself with tidying up, finishing the modest moves of the Brown government and some gradual expansion:

We are taking steps to extend the Freedom of Information Act to more organisations that perform public functions and to companies wholly owned by any number of public authorities. We have already extended it to all academies, the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service.

 

In our response to post-legislative scrutiny, we made it clear that we intended to conclude consultations with a wide range of other bodies, including more than 200 harbour authorities, awarding bodies, approved regulators under the Legal Services Act 2007 and 2,000 housing associations…We strongly encourage public authorities and contractors alike to go further than the minimum requirements in the Act and voluntarily to provide more information.

There may also be a lesser option than section 5. Contracts between public bodies and providers could build in an ‘openness clause’, as the Justice Committee and government recommended. This is already being done in many places. In fact, the Justice Committee concluded ‘the evidence we have received suggests that the use of contractual terms to protect the right to access information is currently working relatively well’. On the whole private bodies generally co-operate in providing information and only a few resist and panic. The difficulty however is, as one FOI officer pointed out, if they ran into difficulty what authority would risk a large, complex contract for the sake of a few FOIs?

‘Industrial’ use

While the government is moving slowly on expanding FOI, the concern from FOI advocates is that it is moving more quickly to prevent what it perceives to be ‘abuse’ of the Act. In the January debate on FOI the government expressed concern at what it felt were a small percentage of users taking up large amount of resources, a group they labelled ‘industrial’ users:

Our research indicates that a very small number of requests contribute to a relatively large proportion of the cost of freedom of information: 8% of requests to central Government cost more than £500 to answer and make up 32% of total staff costs.

The first problem is who are the ‘industrial’ users? At local government level the majority of users seem to be businesses. It is unlikely the government would wish to restrict business use. Other possible culprits could be aggrieved individuals, NGOs and, the group that most often grabs politicians’ attention, journalists. Actually, even within a public authority there are different views as to which groups constitute a problem - a local government study found FOI officers felt businesses were heavy users while council leaders focused on the media.

The second related problem is how you define industrial use, which is sure to be difficult and attract controversy over who is included (would it be media groups? Trade unions? NGOs?). The final and biggest difficulty is how to enforce this. Yes, a ‘cap’ or limit on requests from particular bodies can be introduced but it can be very easily gotten round. A requester can ask someone else to do it or use a (non-obvious) false name. They could also simply use one request to ask many questions.

Views of FOI

The wider concern is that the ‘industrial’ discussion is a smokescreen for limiting an Act that throws up surprises for politicians and causes them headaches. Most politicians have a rather narrow view of who uses FOI and why, partly because they only see FOI based stories in the media or the few requests that cross their desk. Tony Blair’s view of FOI expressed in his autobiography summed this up:

The truth is that the FOI Act isn't used, for the most part, by 'the people'. It's used by journalists. For political leaders, it's like saying to someone who is hitting you over the head with a stick, 'Hey, try this instead', and handing them a mallet. The information is neither sought because the journalist is curious to know, nor given to bestow knowledge on 'the people'. It's used as a weapon.

While this view is not borne out by the evidence, what is significant is that it is believed by many senior politicians and officials. David Cameron, despite his enthusiasm for Open Data, also seems to be developing a rather particular view of FOI. He argued to the Commons liaison committee that ‘real freedom of information is the money that goes in and the results that come out’ and expressed concern that some requests were ‘furring up the arteries’ of Government. Cameron has offered a rather distinct, economic view of FOI. This could have profound implications for any future changes; by these criteria FOI requests about decision-making process (from the war in Iraq to car parking) may not count as ‘proper use’.

The difficulty is that FOI is many things at once. It may be partly economic. Yet it is also a practical tool to help people in their everyday lives. For all the attention given to MPs’ expenses, FOI is most commonly used to help individuals. It is also there to help NGOs and others, a new weapon in their armoury to campaign against everything from library closures to polluted air.

On another level it is a key principle very far removed from the views of senior politicians. If freedom, as George Orwell defined it, is ‘the right to tell people what they do not want to hear’ then FOI is an important part of this: the right to ‘ask questions those in power don’t want asked’.  This should be borne in mind through all the complexities and complaints.

 

About the author

Ben Worthy is lecturer in politics at Birkbeck College, University of London. He was previously Research Associate in FOI at the Constitution Unit at UCL.

 

Related Articles
The sneak attack on Freedom of Information
Matt Burgess