The random thoughts of a sceptical activist

Fog on the Tyne

The Freedom of Information Act 2000 (FOIA) is an important tool for everyone, not just skeptics. It gives the right to anyone to ask for any information held by public authorities who are obliged to supply that information unless it is covered by a limited number of exemptions.

The House of Commons Justice Committee said earlier this year:

The Freedom of Information Act has been a significant enhancement of our democracy.

Indeed it is, but it is under threat and a campaign was started earlier this year to protect it. The threats to it are concisely summarised in an e-petition to the Government (unfortunately now closed):

Leave FOI Alone (#saveFOI)

Responsible department: Ministry of Justice

The Freedom of Information Act 2000 (FOI) has exposed the scandal of MPs’ expenses, and many examples of waste and improper behaviour by public authorities, politicians and public officials. We call on the government not to allow it to be watered down, nor for there to be a charge for making requests for information.

The public authorities covered by the FOIA are listed in Schedule 1 to the Act and include the bodies you would expect and maybe a few you’ve never heard of.

But Trading Standards (TS) is one such public authority covered by the FOIA.

Each Local Authority in the country has a Trading Standards service and they are the guardians of an impressive list [Link disabled because of possible malware on that website] of regulations, orders and rules including the Consumer Protection from Unfair Trading Regulations 2008 and, of course, the Cancer Act 1939.

I have never requested any information under the FOIA about Trading Standards, but it’s easy to see that some information could be very useful in finding out, say, information on complaints and understanding how they work and deal with complaints.

A very useful tool for all Local Authority residents and others.

But maybe not in North Tyneside.

On 14 August, North Tyneside Council (Labour led with a directly elected Conservative Mayor) announced the outsourcing of some Council functions:

Balfour Beatty has been selected as the preferred partner for the business package which incorporates finance, procurement, revenues and benefits, ICT, Customer Services and Human Resources.

And Capita Symonds is agreed as the preferred partner for a second technical package that incorporates property services, planning, engineering services and consumer protection and environmental health services.

The consumer protection functions are those currently performed by Trading Standards. [Link disabled because of possible malware on that website]

North Tyneside’s Elected Mayor, Linda Arkley, is quoted as saying:

The partnership with external providers is the best solution for the council, its taxpayers, its staff and the borough.

Whether the residents agree is something they can demonstrate at the next local election, but this does raise the question of duties of the Council and these private companies under the FOIA.

So I asked North Tyneside Council:

I note that you have named your preferred bidders for the outsourcing of a number of Council services including Trading Standards.

Can you tell me if Balfour Beatty and Capita Symonds will have the same Freedom of Information Act 2000 duties and responsibilities under those contracts as the Council currently does? If there will be differences, can you say what they will be?

They considered this a request under the FOIA and took the usual 20 working days to reply:

The Partners [ie the private outsourcing companies] will not be subject to FOI requests in the same manner as the Council and will not have the same legislative requirement to respond to freedom of information requests.

However the Partners have contractual requirements to assist the Council respond to FOI requirements where they hold relevant information.

So, because these are private companies, not public authorities and therefore not listed in Schedule 1, they do not have to comply with the FOIA, but there will be ‘contractual requirements to assist’ the Council.

[The private outsourcing companies] will not be subject to FOI requests…

Now, I am not a lawyer, but it seems to me that being contracted to ‘assist’ the Council to respond to FOIA requests isn’t quite the same as having a legal duty to provide that information. The devil may be in the detail, but there seems to be more fog than clarity at the moment — I’ve asked for further details of these ‘contractual requirements’ and I’ll update this post when I get a reply (almost certainly in another 20 working days time).

The Justice Committee, in their review of the FOIA earlier this year, said:

We believe the public sector is generally maintaining the right of access to information when public functions are out-sourced by judicious use of contractual terms. Such contracts should clearly safeguard Freedom of Information rights. With the changing commissioning landscape, however, this is a matter which must be kept under review to ensure that there is no diminution of the reach of the Act, or the accountability it brings with it.

It seems likely that this outsourcing will spread to other Local Authorities, but this issue already affects other areas, particularly with the increasing involvement of private companies in the NHS.

The situation is unclear at the moment and it may take some time for the fog to lift. But without proper safeguards, our democratic right to information could be severely curtailed.

Update

11 November 2012

As I mentioned above, I asked North Tyneside Council for details of the FOIA ‘contractual requirements’ they placed on their ‘Partner’ subcontractors. I really didn’t expect them to give me details of their contracts, but they did. Their full response is here, which gives the full contractual details relating to FOIA duties.

Two interesting points are that the Partner must keep all relevant information and that this can be inspected by the Council:

60.6 The Partner shall ensure that all Information produced in the course of the Agreement or relating to the Agreement is retained for disclosure and shall permit the Authority to inspect such records as requested from time to time.

I’m not an expert in this, so will have to leave it to others to examine this and decide whether the public’s right to information is as well protected as it might be.

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