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Information Commissioner proposes to extend Freedom of Information obligations to private bodies

The UK Information Commissioner has announced her plans to extend Freedom of Information obligations to private bodies providing outsourced public services.

On 8 December 2016 the Information Commissioner, Elizabeth Denham (Commissioner) gave an opening speech at an event to celebrate 250 years of Freedom of Information (FOI), dating back to a Freedom of the Press Act passed in Sweden in 1766. In her speech, the Commissioner put forward her plans to extend the obligation to respond to FOI requests to private bodies, where public services are outsourced to such entities.

The Commissioner said:

 “Whether public, private or third sector organisations are delivering a service, the public’s right to know should stand unchallenged.”

The Commissioner revealed that the Information Commissioner’s Office (ICO), which enforces FOI law and promotes good practice, will next year present a report to Parliament evidencing the need for transparency in public sector outsourcing. Giving the example of a council-run swimming pool, the Commissioner explained that information about the pool should fall under FOI legislation even if the council has paid a company to run the pool.

The Freedom of Information Act 2000 (FOI Act) gives any person, including foreign nationals and companies, the right to access information held by public authorities in England and Wales. The aim of the FOI Act is to inform the public about policy issues to enable them to hold the government to account and improve the quality of government decision-making.

WAB Comment

The FOI Act is only 16 years old, but has played an important part in increasing the public sector’s transparency and accountability, particularly through the use of FOI requests by investigative journalists.  In March this year an Independent Commission Report stated that the Act was working well and saw no need for it to be radically altered or restricted, rejecting a proposal for fees which might limit the number of requests made.

The Independent Commission had also commented on calls to make private companies delivering outsourced public services subject to the Act, stating  the view that this would be “burdensome and unnecessary”.  Instead they had proposed that, “information concerning the performance or delivery of public services under contract should be treated as being held on behalf of the contracting public authority”. The information held by the private companies would therefore be subject to requests to the relevant public authority.

If Parliament were to agree with the Commissioner’s view, businesses (and presumably charities) which carry out services for public bodies would have to be prepared to disclose potentially sensitive information to the public. As the Commissioner commented, drafting the detail of such a law and deciding its reach will not be an easy process.

Businesses providing services to public bodies will have to wait to see how far the ICO’s proposals go in imposing FOI requirements on private organisations, particularly in regard to disclosure of sensitive commercial information.

Read the Commissioner’s speech in full here.

This blog post was written by Amelia Day and Nicholas Mitchell.

Disclaimer: This article is produced for and on behalf of White & Black Limited, which is a limited liability company registered in England and Wales with registered number 06436665. It is authorised and regulated by the Solicitors Regulation Authority. The contents of this article should be viewed as opinion and general guidance, and should not be treated as legal advice.

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