Information Commissioner calls for FOIA and EIR reform to address outsourcing

In a report to Parliament, 'Outsourcing Oversight? The case for reforming access to information law', Elizabeth Denham said: “In the modern age, public services are delivered in many ways by many organisations. Yet not all of these organisations are subject to access to information laws.

“Maintaining accountable and transparent services is a challenge because the current regime does not always extend beyond public authorities and, when it does, it is complicated. The laws are no longer fit for purpose.”

She added: “Urgent action is required because progress has been too slow. It is now time to act. This report sets out solutions that can extend the law to make it fit for the modern age.”

Denham said the main aim her report was to make an evidence-based case to extend the reach of FOIA and the EIR “to enable greater transparency and accountability in modern public services, which in turn improves services”.

The Commissioner said in the report that she would welcome a Parliamentary Inquiry via a select committee into the issues raised. The ICO has submitted the report to the Public Accounts Committee (PAC) and PACAC for their consideration.

The report’s recommendations are as follows:

Greater use of existing powers under section 5 of FOIA - secondary legislation

We recommend that the Government should:

1. Designate contractors regarding the public functions they undertake where this would be in the public interest, whether because of the scale, duration or public importance of the contracts.

2. Designate a greater number of other organisations exercising functions of a public nature, and do so more frequently and efficiently.

Designation orders under section 5 of FOIA would give the public the right to make requests directly to these organisations and require them to proactively disclose information in line with a publication scheme.

Legislative reform of FOIA and the EIR - primary legislation

We recommend that the Government should:

3. Consider reforming the EIR to allow organisations exercising functions of a public nature, including contractors, to be designated to increase consistency across the two information access regimes.

4. Amend section 3 of FOIA and regulation 3 of the EIR (‘held on behalf of’ provisions) to give a clearer legislative steer about what information regarding a public sector contract is held for the purposes of the legislation.

5. Introduce a legal requirement to regularly report on the coverage of the legislation.

Government review of proactive disclosure provisions regarding contracting

We recommend that the Government should:

6. Conduct a comprehensive review of all proactive disclosure provisions regarding contracting, and which affect the public sector. This would include a review of the publication scheme provisions in FOIA, and relevant provisions in the EIR, and how they complement other procurement laws and government requirements. This should consider how such provisions are monitored and enforced, and what resources are available.