Freedom of information: time to extend?

The Information Commissioner’s Office (ICO) recently opened up the debate on freedom of information (FOI) and outsourcing, with a new report laid before parliament.

Why does this matter to charities?

When people talk about the outsourcing of public services, they aren’t usually thinking of charities. Major controversies tend to relate to private providers like Carillion or Serco, and political debate focuses on the private sector. But that doesn’t mean FOI is irrelevant to our sector. Charities do a great deal of work under contract with government. Children’s services, social care, mental health support, specialist services for disabled people and many other things are often delivered by voluntary providers. So, FOI matters to us.

What is the ICO saying?

The government can designate organisations as public authorities for FOI purposes where they’re carrying out public functions or providing a public service under contract. This means the public can ask them directly for information under FOI, and organisations would have to proactively publish some information too.

The ICO is recommending that the government should make more use of this power, including for:

  • contractors for large, long-term or otherwise important contracts
  • other organisations exercising functions of a public nature.

To be clear, the suggestion is that FOI should cover these organisations’ performance of public functions – not everything they do.

The ICO also wants the government to consider amending the Freedom of Information Act (FOIA) to make it clearer what counts as being ‘held on behalf of’ a public authority and so is subject to FOI. The closer the outsourced service is to the public authority’s core functions, the more likely it is to be covered by FOI. But it’s pretty unclear where the line is at the moment.

Unlike the current power to designate organisations, existing public authorities would still be the ones fielding questions about outsourced services. But charities and others would have to provide information when asked by the public authority.

The ICO hasn’t said exactly which contracts it thinks should be covered by designation or by a reformed FOIA. In 2016, the Independent Commission on FOI suggested that FOI should only apply to:

  • individual contracts worth £5m or more
  • multiple contracts with a single public authority worth at least £5m in value over a financial year
  • contracts five years or more in length.

If the proposal were along these lines, only a small minority of charities would be directly affected.

But that’s not the whole story. Many charities, especially smaller charities, deliver services as subcontractors. If public authorities need information about a contract for FOI purposes, large contractors may need to ask their subcontractors for information too.

What do we think?

NCVO has been thinking about this issue for a while. We support greater transparency in public service delivery and contracting. We’ve also led calls for more transparency from charities more generally. We want all organisations to be run openly and transparently, and we still think FOI is only part of that, as we said in 2016.

But given our ambition for more openness, it is difficult not to support extending FOI in principle. We welcome the ICO starting a conversation about how to do it. But the conversation hasn’t primarily started with charities in mind, so it’s important to think about how to make this work for charities.

We’ve talked to some interested charities and others about this issue. These are the main points for us:

FOI requests should go via the public authority, not charities

Public authorities already have to decide on FOI requests. Our discussions suggest charities don’t want to be in the frontline of making those decisions. There are more complicated cases where charities are carrying out public functions, but not under contract. But if a children’s charity is running children’s centres for a local authority, for instance, we think the local authority should field FOI requests. It would then ask the charity for the relevant information.

Charities shouldn’t shoulder the cost of FOI

One key argument for extending FOI is that commissioned and state-delivered services should be equally transparent – so there is a level playing field. The same principle should apply to costs. So, it’s important that the cost of FOI is factored into future contracts. We would want this issue to be clearly addressed by government.

Smaller charities mustn’t be frozen out of subcontracting

Even if we made sure to factor the cost of FOI requests into the value of contracts with public authorities, there is a risk that charities (especially smaller ones) would end up bearing extra costs as subcontractors further down the line. We’d want this risk to be addressed. So, in this model, when charities deliver work as subcontractors the contractors should have to ensure that doesn’t happen as part of the subcontracting process and consider FOI costs as well.

We need to think carefully about thresholds

We haven’t seen any work done to establish what threshold should be set above which contracts or contractors would be subject to FOI. We’d like to see research into the impact of different criteria for choosing which contracts are subject to FOI.

What do you think?

We’d like to hear from charities who this would affect. We’d like to know what you think about the principle and how it would work in practice. This probably won’t change imminently – but it’s important charities aren’t caught on the hop when it does.

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Douglas Dowell is one of NCVO's senior policy officers, working mainly on charity law and regulation.

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