The UK Government carried out a consultation on the extension of
FOI legislation to contractors or companies which “carry out
functions of a public nature” between October 2007 and February
2008. The Ministry of Justice has now published its response to
that consultation.
The Confederation of British Industry (CBI) responded to the
consultation, arguing that designating private sector organisations
as public authorities for FOI purposes would increase their costs,
and these costs would be factored into existing and future
contracts – thus increasing costs to public authorities and to the
public.
The CBI stated in its response that "companies would find it
extremely difficult to factor in FOI requests as a fixed cost when
contracting with government and could set a price per request
instead. This would mean contracts may engender significant
additional costs where companies receive a substantial number of
FOI requests."
The point was made that information in relation to a particular
contract could be requested from both the contractor and the public
authority, leading to a proliferation of costs and potential
litigation.
The Government said that statutory obligations in relation to
accounting, reporting and business ethics help to safeguard the
public interest. It concluded that "no general expansion of FOI in
relation to contractors is appropriate at the present time."
"However, the Government intends to keep this matter under
review, particularly in relation to prisons, detention centres and
foster care homes provided by private sector contractors on behalf
of public authorities," it added.
Some other organisations will be brought within the FOI regime,
though. The Government said that it will consult further with these
bodies.
Louise Townsend, an information law
expert at Pinsent Masons, the law firm behind OUT-LAW.COM, said
that companies will welcome the news.
"The list of organisations that will come within FOIA is shorter
than expected," she said. "Most companies can breathe a sigh of
relief."
"One of the points apparently taken into account by the
Government has been what it describes as 'the change in the
economic environment since the consultation closed' and the
commitment to reduce red tape for business," she said. "For once,
the construction industry has something to thank the credit crunch
for – although in the scale of things it may not seem much to
rejoice in."
"There is good news for most of those who were concerned about
the potential extension – no private sector contractors are to be
covered at this stage at least, nor are charities or professional
or voluntary regulators."
The announcement effectively sets out four categories of
organisations:
- Organisations that are to be covered by FOIA. They are:
Academies, the Association of Chief Police Officers (ACPO), the
Financial Ombudsman Service and the Universities and Colleges
Admissions Service (UCAS). There will be further consultation with
all of these bodies.
- Organisations that are not being covered at this stage but
where the Government is "attracted" to the prospect of bringing
them into the FOIA regime. These are utility service providers,
including telecommunications service providers. There will be
further consultation with these organisations.
- Those who are not being covered but who the Government is going
to "keep under review". These are contractors who supply
major services to the public sector particularly those who provide
services such as prisons, detention centres and care
homes. They are exhorted to voluntarily publish information
and adhere to the principles of FOIA.
- Those who the Government has decided do not need to be
included. These include charities and the regulator of
professional and voluntary services.
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