Government advisers call for major extension in application of FOI regime

An independent panel advising ministers on local public data has called for a dramatic extension to the FOI regime, proposing that the government should consider amending the legislation to apply it to all publicly funded services “regardless of the organisation that delivers them".

The Local Public Data Panel, whose views will inform the government’s review of FOI legislation, also proposed that data that the public has the right to obtain under FOI should be published as open data.

“These two proposals reflect the principle that public transparency should follow public money,” the Panel said. “Implementing them would provide consistency in the application of this principle across all publicly funded services.”

The Panel also offered its assistance in the development of further guidance for public authorities on building open data considerations into all public service contracts, and on a new code of practice on the open release of datasets requested under FOI.

On extending FOI to publicly funded services delivered by non-public secor organisations, the Panel said services were often delivered by private companies, registered charities, voluntary organisations and others outside of the public sector.

“At present, when this happens, information relating to those services falls outside the FOI regime unless the bodies are, or are wholly owned by, bodies specifically listed in Schedule 1 to the FOI Act 2000,” it pointed out.

The Panel said it welcomed the updating through secondary legislation of the list of bodies to be covered by FOI under Schedule 1. It also approved of proposals in the Protection of Freedoms Bill to extend the FOI Act to cover companies owned by two or more public authorities.

However, it warned that these changes did not cover the wide range of non-public sector organisations that deliver public services.

“Therefore, the public’s access to data and information depends on whether the service is being delivered internally, or by an external organisation,” it said. “As well as taking what should be publicly accessible information out of the FOI regime, this also creates an incentive for public bodies to outsource services to put them out of the reach of FOI legislation.”

The Panel urged ministers to consider amending the FOI Act “to encompass a wider definition of public authorities, to apply FOI to all publicly funded services regardless of what organisation delivers them”.

It said that, in searching for a workable definition of the bodies that should be covered and to what extent they should be covered, useful lessons could be learned from the courts’ application and interpretation of the concept of a “functional public authority” under the Human Rights Act.

“The concept is intended to be used to apply the provisions of the Act to public services delivered by organisations outside the public sector but not to those organisations’ other ‘private’ activities,” the Panel said.

It acknowledged that more detailed guidance would be required to enable public bodies to ensure that the public right to information was effectively built into procurement processes.

The Panel argued that its second proposal – that data that the public has a right to obtain under FOI should be published as open data – would “move us away from the unsatisfactory situation of people being allowed access to information on a one off basis, and only if they happen to ask the right question of the right organisation at the right time”.

It again welcomed measures in the Protection of Freedoms Bill requiring authorities to publish datasets requested under FOI in a re-usable format, and to publish updates to those datasets.

But it warned that the draft legislation included “broad and undefined caveats” around the requirement to publish datasets that are requested under FOI.

“For example, it provides that authorities are only required to publish datasets requested under FOI ‘unless the authority is satisfied that it is not appropriate for the dataset to be published’,” the Panel said.

The advisory body suggested that the code of practice to be issued by the Secretary of State would be “crucial in determining the extent to which the provisions of the Bill are effective in opening up more public data”.

The Panel said the code would need to specify clearly what should be considered appropriate or inappropriate by authorities when deciding whether or not to release datasets and in what format.

“Further guidance may also be required on licensing issues, beyond what already appears on the face of the Bill, to ensure that the Open Government Licence is the default license for public data,” it said.