Digital security

Freedom of Information may become the price of selling to government

By: SA Mathieson
Published: Monday, August 11, 2014 - 05:59 GMT Jump to Comments

MPs and campaigners want suppliers to be covered by Freedom of Information law, with the Cabinet Office considering changes. Companies should get ahead of the curve.

The Freedom of Information Act 2000 gives anyone the right to ask any public authority in England, Wales and Northern Ireland for information held in any form; Scotland had similar legislation passed in 2002. There are a range of exemptions, including national security and ‘vexatious’ requests – the same person asking for the same thing over and over again, for example.

But in general, every public authority – including every council, NHS organisation, government department and quango – spends a significant amount of time and money on complying with FOI. What if suppliers to government had to follow suit?

A few already do. Last September, as a result of the 2012 Protection of Freedoms Act, the government expanded the definition of ‘public authority’ to cover companies wholly owned by the UK public sector, such as spin-offs from local authorities used to manage their social housing.

It would also have meant that Manchester Airports Group plc would have been subject to Freedom of Information requests, as until February last year it was entirely owned by Greater Manchester’s 10 councils. However, the councils then sold a 35.5% stake to Australian investment group IFM, to help fund the group’s purchase of Stansted airport – and as a side-effect, avoid FOI.

Now, campaigners and MPs are pushing for FOI to cover at least some of the companies that supply the public sector, regardless of ownership. One argument is that outsourcing has seen chunks of public sector activity transferred to private companies, meaning that work once subject to FOI disappears into private companies. This goes down particularly badly with those want to investigate the operations and efficiency of outsourcing.

Parliament’s Public Accounts Committee has called more than once for such contractors to be covered by FOI, and after a request from the Campaign for Freedom of Information, July saw Liberal Democrat MP for Birmingham Yardley John Hemming include changes to FOI in his private member’s transparency and accountability bill.

Mr Hemmings’ bill will receive a second reading on 17 October, and while few such bills become law, they often show which way the wind is blowing. In fact, June saw the Cabinet Office agreeing with a Public Accounts Committee recommendation that “the FOI regime could be extended to cover contracts with private providers”, saying it will work with the Confederation of British Industry to agree “key principles for greater transparency by autumn 2014”.

“If a new code of practice is indeed issued this autumn, with a possible formal extension of the Freedom of Information Act, we have to welcome the transparency it will bring into the supply chain,” says Simon Colvin, a partner at law firm Pinsent Masons.

“The challenge, however, will be to ensure SMEs are not saddled with additional admin burden or disincentivised by commercial sensitivities that could be introduced as part of this new code of practice. Success will depend on striking a balance between greater transparency and openness while not overburdening businesses.”

Some companies may want to campaign against such expansion of FOI; but they would be unwise to do so. The smarter course for firms with extensive government contracts would be to publish details voluntarily, and answer FOI-like queries whenever possible. Cynically, if enough suppliers opened up, it could help defuse the argument for suppliers to be covered by FOI. However, it may already be too late for that.

Whether or not the current government extends FOI to suppliers, through a code or through supporting John Hemmings’ bill, political parties are looking for new thinking for their manifestos, and it is easy to imagine this idea being adopted by one or more of the parties. Suppliers are likely to be forced to say more about their government work at some point in the future; it may be wise to get ahead of the game, opening up to the public before being forced to do so.

Campaign for Freedom of Information on John Hemming’s bill

Government response to Public Accounts Committee recommendations, including commitment on greater transparency on contracts (p12)

Councils incentivised to publish standardised data in three key areas (The Information Daily, July 2014)

Freedom of Information Act hasn't made Government more accountable says Whitehall (The Information Daily, February 2012)

The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the official policy or position of The Information Daily, its parent company or any associated businesses.

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