The government has ruled out extending the Freedom of Information Act (FOI) to private companies and contractors who work under public contracts.
Instead, they have decided to rely on “transparency clauses” in the contracts issued to the companies
During a debate on FOI last week MP Sir Alan Beith said the issue of private organisations who were spending public money and not being freely scrutinised by the public was a “significant problem.”
He was joined in raising the issue by Labour’s Andy Slaughter who said that companies such as G4s, Serco and Capita are given “huge additional powers” and that whole areas of Government service are given to them.
Concerns were also raised by the Conservative MP Sir Richard Shepherd that the private contractors would still not be accountable to the Information Commissioners’ Office when disputes rise about the release of information.
But during the debate, speaking for the Government, Justice Minister Helen Grant said contracts made would include “contractual transparency clauses be used and enforced to ensure that freedom of information obligations are met.”
MPs heard that guidance will be issued to encourage public authorities and contracts to go further than the minimum requirement to provide information.
She said the act would not be extended to contractors unless the agreements in their contracts “yields insufficient dividends.” Although no more information was given on this, meaning it is unlikely that any back-up for the contracts not working would not be included in the legislative changes discussed.
In total 87 MPs have signed a motion to parliament, which calls for the FOI to be extended to private contractors who are using public money to complete work for the National Health Service (NHS).
Plus, Mr. Slaughter reaffirmed Labour’s position that they want to extend FOI to “cover the delivery of public services” by private companies and the voluntary sector to prisons, schools and hospitals.
No Conservative MPs have signed the petition to extend FOI to private contractors, although Conservative MP Sir Richard was one of the leading speakers on the issue at the debate.
In a long speech, where he favoured extending FOI to private contractors, he drew particular attention to the NHS and the Health and Social Care Act 2012.
“Let us suppose there are suspicions about the use of outdated, or potentially substandard, or even contaminated supplies by hospitals. For an NHS hospital, the Act could be used to obtain details of stocks of the product, analysis results, correspondence with suppliers, minutes of meetings at which the problem was discussed, concerns about the issues raised by staff and details of how they were handled, as well as information showing what measures were considered, why particular options were rejected and what was done,” he said.
“Such information would not be available in relation to independent providers treating national health service patients.”
Sir Richard also criticised the level of accountability private contractors would have to the Information Commissioner (IC). As he rightly pointed out the IC’s powers only relate to public authorities, therefore the office cannot investigate a contractor’s claim that it does not hold the information asked for.
Furthermore the office will not be able to serve a decision or enforcement notice on a contractor. If the contractor is not fulfilling its FOI duties under the contract will there be any way to force them to do so? A contract is unlikely to be nulled, or cancelled because FOI is not being being complied with.
He said: “Once a contract has expired, any contractual disclosure requirement may lapse, so removing the right to information about past events. Even if the contract stipulates that disclosure requirement survives, it could only be enforced by a civil action for breach of contract against the contractor.”
Only time will tell if the contractual agreements with companies will be honoured under the spirit of the FOI act and whether the Information Commissioner’s Office will be able to have any input when a contractor does not keep their end of the deal.
However in the meantime, details of the “contractual transparency clauses” should be made public and will hopefully apply retrospectively to those who are already private but operating with public money. Alongside side this there is the need for details of contractors which information can be asked from, via public authorities, to be made public.