Private firms successfully lobby for exemption from FOI

OurKingdom Ourkingdom
21 July 2009

Martin McIvor: There's no doubt that Freedom of Information (FOI) will stand as one of the greatest democratic gains of Labour's period in government. FOI requests are now part of the every day life of journalists, campaigners, and citizen activists.

At the same time, we know the regime has many gaps and limitations. One major blank area was the growing role played by private companies performing public functions under contract to the state. This now includes hospital and GP services, tax and benefit administration, child-minding and foster care, long-term care for the elderly, waste and environmental services, even prisons and military facilities.

In fact, although 2000 Act initially applied only to public sector bodies, it did allow for ‘contractors who provide services that are a function of a public authority' to be included by Order. Last year the Public Accounts Committee recommended that this loophole should be closed. Given that such contractors would still be protected by the commercial confidentiality exemptions built into the FOI process, they argued, ‘we cannot see any legitimate argument' why contracted out services should remain beyond the pale of public accountability'. ‘Regulatory burdens on providers should be as light as they can be without reducing the rights of service users and citizens - but no lighter'.

But in last week's response to the recent consultation over extending FOI, the Ministry of Justice sided with ‘a number of contractors and representative bodes' who lobbied hard to retain their exemption. The CBI warned that ‘designating private sector organisations as public authorities for FOI purposes would increase their costs and these costs would be factored into existing and future contracts.'

According to the government's own figures the private ‘public services industry' is now in receipt of £80bn of public spending every year. This is widely expected to grow further even as total public spending is squeezed, because such companies are always able to offer themselves as a cheap option. A key reason they can consistently undercut ‘in-house' options is that they don't bear the costs of being held to public sector standards of transparency, accountability, and good practice (in addition to FOI responsibilities they are also exempt from the Human Rights Act, the public sector equality duties, comprehensive equal pay audits, trade union recognition agreements and nationally agreed terms and conditions for staff).

Public service union UNISON has persistently argued that this increasingly powerful industry should be subject to greater public scrutiny. There are big questions to be asked about whether it is providing value for money for the taxpayer or committed, dependable and high quality services and facilities to those who need them. This decision won't make it any easier to get answers.

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