Public Services > Central Government

Government wants outsourcing openness with revised FoI code

Neil Merrett Published 12 September 2014

Date yet to be set for publication of revised code of practice for FoI requests on private contracts, as ICO calls for end to “vagaries” within outsource deals


The Ministry of Justice (MoJ) will publish a revised code of practice on dealing with Freedom of Information (FoI) requests concerning government contracts with private companies in order to "promote greater openness" over the outsourcing of public services.

With the ministry currently leading FoI policy across government, it said any changes made to the types of information available to the public on outsourced contracts would apply across all other departments.

An MoJ spokesperson said that although the department could not provide a date for when it would publish revisions to the code of practice, government had already extended the scope of FoI requests by bringing 100 additional organisations into the scope of the Freedom of Information Act (FoIA).

"As we have said many times, we will continue to look at extending the scope of FOI," the spokesperson said. "[The MoJ wants] public authorities to interpret their obligations about information held by contractors broadly and go beyond the bare minimum required under the Freedom of Information Act (FoIA)".

The Parliamentary Public Accounts Committee (PAC) and the Confederation of British Industry (CBI) have been among groups calling for greater transparency from the government over the specific details of its agreements with private contractors.

In March, a PAC report concluded that with half of all public service spending going to private companies, government departments should not hide behind "commercial confidentiality" when faced with requests for specific information on individual contracts.

Also among those with an interest in extending FoI requests to outsourced public service providers is data regulator, the Information Commissioner's Office (ICO), which outlined reviewing current policy on available information from private contractors among key focuses for the coming year within its latest annual report.

While the Information Commissioner's Office (ICO) said it welcomed the government's proposals to improve the transparency of outsourced contracts, the regulator nonetheless called for more action to clear up potential vagaries over what information is available about contractor agreements.

"As the regulator of the FOIA, we want more certainty about what information is in scope of a FOIA request and what isn't. That would help contractors, public authorities and requesters," said ICO senior policy officer Carl Wiper.

Under current legislation, information held by a public authority or an organisation acting on its behalf is accessible under the FOIA, according to the ICO.

Wiper said that certain information held by a contractor providing outsourced services would also be held on behalf of a public authority in and was therefore potentially accessible through an FoI - barring some exemptions.

"This could include information about the delivery of the contract and the contractor's performance against KPIs," he added.
"However, it is difficult to draw the dividing line between information that the contractor holds purely in its own right and the information that it holds to some extent on behalf of the public authority. It's therefore difficult for the requester to know what information they have a right to ask for."

Wiper noted that in terms of limitations, the FoIA included an exemption for information requests from the public that could prejudice commercial interests.

"For this to apply there has to be a real likelihood of prejudice, and then there has to be a balance between protecting those legitimate commercial interests and the public interest in transparency; each case has to be decided on its merits," he said. "There are also exemptions for information given in confidence and for personal information that may be relevant. "

Wiper said the regulator had taken part in a round table event with pressure groups over the issue of transparency in outsourcing and also invited authorities to send examples of FoI clauses in outsourced contracts.

"We've been looking at decision notices that we've issued as well as judgements from the Information Tribunal on this subject. We're currently drafting a paper on this which will set out how we approach issues around outsourcing information under FOIA," he said.

Wiper said that the paper, which is expected to be released in the autumn, would attempt to outline its approach to FoI requests on outsourcing, as well as providing good practice for public authorities.

"Where public money is being spent we think there should be transparency and accountability. What we want to see is more certainty about what information the public have a right to ask for," he added. "If the effect of outsourcing is that some information is no longer in scope of FOIA, then let's be honest and recognise that."

A number of companies now provide managed services to the government. Atos, which provides a number of contracts for clients including the Department of Health and Ministry of Defence (MoD), as well as the controversial work capability assessment programme for the Department for Work and Pensions (DWP), said all FoI Requests were handled by individual government departments.

A spokesperson for the company said that under present regulations, individual government departments were responsible for what information they can or cannot provide under an FoI request.

"Where we hold information on behalf of a department - because we run a service for them - they will request it from us and we will provide it," the spokesperson said. "All Key Performance Indicators and contractual clauses are part of the contract with a given department and owned by these departments (as they let the contracts to their specification)," said a spokesperson for the company.

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