SPOTLIGHT

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The value of expanding the UK’s FOI regime

FOI 40018960 s 146x219LexisPSL Public Law spoke to Adam Chapman, partner and head of public law at Kingsley Napley, about the potential expansion of the UK’s freedom of information (FOI) regime and explains that introducing certain measures—such as a ‘duty to document’—may be providing a solution to a problem that doesn’t actually exist.

What is the background to the Information Commissioner’s suggestions that the FOI regime should be extended to private businesses contracted to provide public services, and public authorities should be under a duty to record all significant decisions, allowing negotiations to be subject to FOI?

The new Information Commissioner’s suggestion that private contractors (above a certain threshold for a contract or doing some specific types of work) could be included under the Freedom of Information Act 2000 (FIA 2000) is a development of a suggestion made by her predecessor, as well as a large number of others, including the Public Accounts Committee and the recent Independent Commission on Freedom of Information. It is a move that stems from the ever-increasing use of private contractors to provide public services and the perceived need for greater transparency and accountability in relation to such outsourced public services. Currently FOI only has a limited reach in respect of contracts such as those.

Meanwhile, the suggestion that public authorities have a ‘duty to record’ any significant decisions they undertake is a reflection of the Information Commissioner’s experience in Canada (the British Columbia Government, where she was positioned as Information Commissioner, has recently enacted a ‘duty to document’ law). It also chimes with concerns that have been expressed in the UK in relation to the current so-called ‘sofa government’—namely, that it engages in an informal decision-making process where important decisions (especially in central government) are made without a proper record being made of them.

Does the Information Commissioner’s stance mark a move away from or a continuation of the Information Commissioner’s Office’s (ICO) previous approach?

In respect of private contractors, this is very much a continuation of the ICO’s previous approach. Indeed, the ICO produced a report in 2015 entitled ‘Transparency in Outsourcing: a roadmap’, which said: ‘…we feel there is a strong case for designating outsourced services as falling under FOIA when they are of significant monetary value and long duration: for example, those over £5 million in value or continuing over 5 years or where the contractor solely derives its revenue from public sector contracts.’

What are the potential arguments for and against the extension of the FOI regime?

The arguments against the extension of the FOI regime, at least from the perspective of public authorities and, in particular, the private sector contractors, primarily relate to the burden of time and resources that are needed in order to respond to FOI requests. Furthermore, said FOI requests are likely to be used by the competitors of the private sectors contractors in order to gain commercial advantage.

However, requesters can point to a history of poor performance, including cost and deadline overruns, in many government contracts. They believe there is a need to understand how and why that happens and where the responsibility for it lies in order to improve the situation in the future.

What practical impact would a duty to document have, particularly in terms of cen-tral government decision making, public service outsourcing and public procurement?

There are currently no concrete proposals relating to a duty to document. In the absence of such, it is very difficult to assess what practical impact the measure might have. For example, the Information Commis-sioner has not yet given any indication of what sanctions, if any, would apply if there was a breach of the duty to document—the nature of any sanction is likely to be a factor in determining the response to any new duty. In relation to public procurement and public outsourcing more generally, it can only be a matter of speculation as to whether, in practice, any duty to document would actually lead to more information be-coming available, not least given the existing requirements in procurement cases for a formal pre-contract debrief.

Another issue relates to which decisions would be subject to the duty. Public bodies make numerous decisions every day and one anticipates that there would be a need to include some sort of ‘importance’ threshold before a decision could become subject to the duty. Although the location of the threshold is a significant consideration in determining the impact the duty will have, one can speculate that the duty may not actually have much substantive impact. In central government, for example, the Code of Conduct for civil servants already requires them to ‘keep accurate official records’ and there is no real evidence that this is not being done on a consistent basis. Nevertheless, the creation of a duty to document might make public bodies for-malise and systematise how records of decisions are kept, which could provide a check on the overly infor-mal decision-making process that they are said to use.

What do you anticipate the Information Commissioner will focus on in her effort to ‘understand more about the legal context’?

The Information Commissioner will need to look at the direct legal context, for example, the Code of Conduct mentioned above, as well as the legislative provisions that deal with public sector document preservation and records management because any duty to document will be of limited value if these provisions are not fit for purpose.

However—and this is perhaps more important than the legal context—the Information Commissioner may, ultimately, need to assess whether, in practice, there is a genuine problem across the whole public sector that requires the introduction of a legislative solution.

What would the government’s response be to such recommendations, eg would proposed legislative changes be likely to progress in the current climate?

It seems unlikely that the government will want to bring forward legislation to take either of these two rec-ommendations (the extension of the FOI regime to private contractors, and the duty to document for public authorities) forward.

Extending the scope of FIA 2000 to private contractors was suggested by the Independent Commission on Freedom of Information in its report published in March 2016. Despite the government’s previous assertion (in the Cabinet Office’s written statement to Parliament responding to the Commission’s report) that it was ‘committed to making government more transparent, so taxpayers can hold the state to account both on how their money is being spent and how decisions are made which affect their lives’, the government’s general response to the ICO’s report provided no indication that this was an issue that the government would progress.

Similarly, in relation to the duty to document, one suspects that the government position may well be that this is a solution to a problem that does not exist.

How does this fit in with other developments in public sector information law? Do you have any predictions for future developments?
The new Information Commissioner’s proposals fit with the direction of public sector information law sug-gested by many interested observers, as well as with the approach taken by the Independent Commission on Freedom of Information. However, there is little sign of enthusiasm on the part of the government for making any significant changes in this area at the current time.

Interviewed by Giverny Tattersfield. This interview with Adam Chapman, partner and head of public law at Kingsley Napley was originally published in LexisPSL Public Law. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

The views expressed by our Legal Analysis interviewees are not necessarily those of LexisNexis.