The following article was sent in by Erin Ferguson, a qualified librarian and doctoral researcher at the University of Strathclyde Law School. Erin tweets as @fergusonerin.
The recent privatisation of the Royal Mail and scandals involving companies like G4S and Serco have highlighted the ongoing concern over the transfer of public services to the private sector. Privatisation, in this instance defined to include both the sell-off of public assets and the contracting out of public services, has long been a controversial issue. Critics point out that privatisation often fails to meet its objectives, such as improving the quality or reducing the cost of public services. Additionally, there is concern that the delivery of public services is becoming less transparent as private companies are not responsible for responding to requests for information under the Freedom of Information or Freedom of Information (Scotland) Acts. This post examines these concerns, as well as some of the recent proposals that have been put forward to extend FOI responsibilities.
Both the FOIA and FOISA confer on the public the general right to make requests for information from public bodies, which are listed in Schedule 1 of the Act. The list does not include private companies or charities that are now frequently responsible for the delivery of public serves, and both the Scottish and UK Information Commissioners have expressed concern over the potential for services to become less transparent and accountable. A recent survey by We Own It revealed that the public shares these views, with 88% of respondents indicating that they believe private companies delivering public services should be held to the same transparency requirements as the public sector. This concern is not only about the public’s ability to track the public pound. With 1 in 10 prisons no longer covered by the FOIA, there is concern that reduced transparency will make it difficult to scrutinise the performance of core functions of the state.
The continuing calls to protect transparency have spurred politicians into action. In 2012 Shadow Justice Secretary Sadiq Khan announced Labour’s pledge to extend the FOIA to private contractors if successful in the next election. Labour MP Graeme Morris introduced the Freedom of Information (Private Healthcare Companies) Bill in October 2013. The Public Services (Ownership and User Involvement) Bill, sponsored by Green MP Caroline Lucas, had its first reading in Parliament in January 2014. Among the latter private members’ bill’s aims was to make the contracting process more transparent and to extend FOI responsibilities to private contractors. Earlier this month the House of Commons Committee on Public Accounts published a report, in which it was acknowledged that greater transparency in contracting is needed and recommended that extension of the FOI regime be considered.
Last week, Justice Minister Simon Hughes confirmed plans for upcoming consultations on the FOIA. He announced the intended publication of a revised Code of Practice aimed at introducing FOI requirements into the contracts of private companies performing public functions. However, the coalition government has stopped short of actually extended the FOIA to private companies, a move that has been criticised by the Campaign for Freedom of Information. They argue that contractual disclosure provisions defeat the purpose of the FOIA, which was to provide a statutory right of access to information. Indeed, the plans seem reminiscent of the Code of Practice on Access to Government Information, which was introduced by the Conservative government in 1994 as an alternative to FOI and was subsequently criticised for lacking ‘teeth.’ Whilst the details of the revised Code are still unclear, it is clear that the consultation process will need to consider how to ensure that this is not another missed opportunity to preserve transparency.