The Freedom of Information (Extension) Bill is expected to have its second reading in the House of Commons this year. The Bill proposes to extend Freedom of Information Act ('FOIA') and Environmental Information Regulations ('EIR') obligations to public sector contracts.
In light of recent controversy surrounding public sector contracts, this post explores the potential ramifications of the Bill, if passed in its current form.
Proposed amendments to current FOIA regime
The Bill proposes to make two amendments to the current regime:
Sub/contractors:
Section 3(2) of FOIA currently states that information held by a public authority includes information "held by another person on behalf of an authority", such as a contractor or subcontractor. This is the case even where the public authority never physically holds the information itself.
This obligation does not extend to all information held by a contractor in relation to the performance of the contract. The ICO's guidance on Outsourcing and freedom of information encourages publishing as much information in relation to outsourced contracts as possible, including performance information.
In practice, it has been difficult for public authorities to identify whether information held by a contractor falls within the scope of a FOIA request. In a number of cases, the ICO has found that information held by a contractor did not fall within the scope of FOIA or EIR.[1]
The Bill, as currently drafted, proposes to insert section 3A into the Act. This will include a deemed "specified disclosure provision" in any agreement between a public authority and contractor or sub-contractor. Section 3A(3) defines a specified disclosure provision as "a provision stipulating that all information held in connection with the performance or proposed performance of the contract by [the contractor, sub-contractor or any person acting on their behalf] is, notwithstanding any provision to the contrary in the contract, deemed to be held on behalf of the public authority for the purpose of this Act or the Environmental Information Regulations 2004."
Public authorities:
The Bill also proposes to bring social housing providers, Local Safeguarding Children Boards, Electoral Registration Officers, and Returning Officers within the FOIA regime, by adding them to the list of public authorities in Schedule 1 of FOIA.
The potential effect of the Bill
The Bill, as currently drafted, will significantly broaden the FOIA regime. Additional public authorities will fall within the scope of FOIA requests. Local authorities, in particular, will need to account for the increased costs of responding to such requests.
In relation to public sector contracts, all information held by contractors and subcontractors relating to the performance of a contract will now fall within the scope of FOIA and EIR. This may remove uncertainty around such information. However, it could also open up private companies to a wider range, and increased number, of FOIA requests. On the current drafting of the Bill, parties would not be able to contract out of the specified disclosure provision.
The other point to note is that FOIA currently contains an exemption in relation to commercial interests (section 43, FOIA). The exemption allows public authorities to withhold information where disclosure would be likely to prejudice the commercial interests of any person. It is unclear how the Bill will interact with this exemption. In most cases, a contractor will seek to argue that information relating to the performance of a public sector contract is commercially sensitive and should not be disclosed. It is therefore unclear whether the Bill would result in any tangible increase in disclosure.
The Bill could help to increase transparency and accountability in public sector contracts. This is to be applauded given the recent controversy around such contracts. However, parties to such contracts will be exposed to the increased burden of responding to FOIA requests. It remains to be seen whether that burden will be borne by public authorities or by the contracting parties.
If the Bill is passed into law, organisations will need to think carefully about how the Bill may affect their businesses - particularly those bidding for or engaged in public sector contracts.
It may be worth considering how public sector contracts can be drafted to address these concerns. For example, public sector contracts should clearly identify the information held by a contactor or subcontractor relating to "the performance or proposed performance of the contract". This will reduce uncertainty and future exposure to FOIA and EIR requests.
[1] See for example decision notices FS50463474, FS50478617 and FER0484371.