Out-Law / Your Daily Need-To-Know

Outsourcing public services should not undermine freedom of information rights, says watchdog

22 Jan 2015, 12:52 pm

The public's right to access information held by the government and other public bodies should not be undermined by the outsourcing of public services, the Scottish information commissioner has said.

In a new report marking 10 years since the Freedom of Information (Scotland) Act came into force (28-page / 694KB PDF), Rosemary Agnew called on the Scottish parliament to make more use of existing powers to extend freedom of information (FOI) rules to "organisations that are outside what is traditionally considered to be 'the public sector'".

The powers to place more organisations subject to the FOI regime have been "woefully underused", and this has resulted in a diminishing of the public's information rights as an increasing number of public services have been outsourced, Agnew said.

"Rights to access information and the duty to proactively publish information have been lost since the FOI Act came into force," Agnew said in her report. "That means people have access to less information than they did 10 years ago. Both the right to ask, and the duty to tell have disappeared in a number of areas. This has been gradual erosion, rather than the result of a single action. It is largely the result of the changes to the public sector and occurs when public functions are delivered in a different way, for example through outsourcing, by ALEOs (arms length external organisations) or by private companies under contract to a public authority."

"We must act to: address the loss of rights as a result of changes in delivery of public functions and services, and; create access to information rights for the first time, where it is in the public interest to do so," she said.

Agnew's proposals would, if supported, change the way in which MSPs would consider whether to extend FOI requirements to new organisations. She said a "factor based approach" should be adopted to guide MSPs on whether there is a public interest in applying FOI rules to organisations otherwise outside the scope of the Act.

Among the factors Agnew has said MSPs should consider is whether or not an organisation is carrying out a function which a public authority would otherwise provide. "I.e. the functions are of a nature that would require them to be performed by a public authority if the organisation did not perform them," Agnew said.