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FOI for private sector?

We talk to the Scottish Information Commissioner about plans north and south of the border to extend freedom of information laws to private companies.01 Nov 2007

For a transcript, email

A text transcription follows.

This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.

The following is the text spoken by OUT-LAW journalist Matthew Magee.

Hello and welcome to OUT-LAW Radio, The weekly podcast that keeps you up to date on all the twists and turns in the world of technology law.

Every week we bring you the latest news and in depth features that help you to make sense of the ever-changing laws that govern technology today.

My name is Matthew Magee, and this week we hear from the Scottish Information Commissioner who, together with the UK Ministry of Justice, wants freedom of information legislation to extend into the private sector.

But first, the news:

  • Tarzan roar refused trade mark; and
  • Pan-European finance starts today

Tarzan’s distinctive yell cannot be registered as a trade mark because it is almost impossible to represent graphically, according to a European trade mark ruling. Sounds can be registered as trade marks, but the ruling could limit that to sounds that can be written in standard musical notation.

The estate of Tarzan creator Edgar Rice Burroughs applied to trade mark the sound with the help of two graphical representations of it, but the Office for Harmonisation in the Internal Market (OHIM) refused the application on appeal.

The sound was described in the case as a yell consisting of "sustain, followed by ululation, followed by sustain, but at a higher frequency, followed by ululation, followed by sustain at the starting frequency". You might remember it, though, a little more like this:

The OHIM ruling creates a problem for people trying to register sound marks that are not music, since it said that musical notation is the valid way to express sound files and some sounds cannot be expressed in that way.

Pan-European regulation of large sections of the financial services sector comes into force today, but the benefits of the system will largely pass smaller firms by, according to the British Banking Association (BBA).

The Markets in Financial Instruments Directive, or MiFID, is a European directive which says that financial services firms should be able to operate across Europe as long as they are accredited and regulated in their home country.

But Brian Mairs of the BBA told OUT-LAW that the move is likely to disproportionately benefit larger firms.

Maris: It is the big companies that have an international basis that are interested in trading across borders, that want to open up their business well beyond the UK. It should be easier for them to trade, hopefully. Effectively it is economies of scale that smaller firms might have problem, MiFID and its requirements are perhaps more than smaller companies can conveniently bear.

That was this week's OUT-LAW news

There haven't been many things that have changed the culture of government as much as freedom of information legislation. We, the public, now have access to what ministers, MPs and civil servants do with our money in our name.

The logic is clear: the organs of a democratic state should be accountable to the people, not just once every five years at the ballot box but down to the fine grained detail of government.

But should that now apply to the private sector? Just how far should freedom of information laws go? There are signs it is about to be extended into the boardrooms of private industry.

Last week the Scottish information commissioner Kevin Dunion ordered the publishing of a private finance initiative contract between the NHS and the builders and operators of the Edinburgh Royal Infirmary, over-ruling objections that the contract was confidential and commercially sensitive.

Later that week he railed against the fact that the use of PFI is putting information on the provision of public services beyond the electorate's reach.

Then the Ministry of Justice opened a consultation on the extension of FOI laws to private companies who are providing public services.

The tide certainly looks to be turning. Scottish commissioner Kevin Dunion told us about his fears for the burgeoning culture of accountability.

Dunion: My concern has been that far from the Act being extended, certainly in Scotland, there is the danger that the rights of access to information are going to be narrowed as a tactical result of more and more public services being contracted through either directly private companies or indeed through charitable trusts and companies set up by public authorities. A PFI contractor which may have a thirty year contract to carry out activities previously done by the public authority directly, you cannot request operational information from them.

Chris Pounder, an FOI specialist at Pinsent Masons, the law firm behind out-law, outlined what the ministry of justice consultation aims to do about that.

Pounder: If, say for example, a local authority outsource council tax collection to Organisation X, Organisation X would be outside the FOI framework whereas if it was internal it would be inside the FOI framework, so the government's proposals are to say well, if private sector contractors deal with public sector operations then in relation to his operations they should be subject to an FOI regime.

The hiving off of public services into the private sector is a long-established government policy. With the public still ambivalent about profits being made from services and some controversial PFI projects attracting extensive public scrutiny, the extension of the FOI regime into these rather murky waters is not likely to be welcomed by practitioners.

I asked Dunion if these probes might frighten off the private partners for government projects.

Dunion: Well I do not have any view upon whether or not PFI and PPP, are a good or desirable thing. That is not my concern, but I do have a view as to whether or not contracts can only be entered into over a prolonged period of time, 20 or 30 years, spending billions of pounds of public money in the expectation that not a single word of that contract, the terms and conditions, the amount being paid, the performance criteria, any failings in performance but not a word over the next 30 years will be heard. I think that flies in the face of the purposes of freedom of information and my view is that the price of doing business with the public sector should be transparency. In the code of practice drawn up, certainly by the Scottish government, prior to the Act coming into effect, they made it quite clear for example that public authorities should not enter into confidentiality agreements on such contracts or indeed on any contracts. So I think there cannot be any expectation by the private sector that they can get these vast sums of public money and yet they cannot be exposed to any public accountability or scrutiny.

The Ministry of Justice is looking at making this shift with its consultation on changing the law. But Dunion did not wait so long. In his ruling on the Edinburgh Royal Infirmary he went some way to making these changes a reality today.

A request for the 1.2 billion pound contract under which the ERI would be run for 30 years was rejected by NHS Lothian and the PFI operator consort because the parties claimed that the information was confidential and commercially sensitive.

Dunion: said that the whole contract cannot be protected in this way. He asked NHS Lothian to provide justification for any specifically commercially sensitive parts of it. They didn't, so he ordered the publishing of the whole contract.

If nothing else, the episode shows that authorities would do well to engage with the commissioner's process. Dunion also explained how it could be done better.

Dunion: It is up to the authority to set out its arguments and its conclusions in the submissions that it makes to me and to the legislation. I think the lessons from here to Scotland is, for goodness sake, take this extremely seriously and the best way to do that is, when drawing up the contract, to have regard to the code of practice which we have in Scotland and which exists elsewhere in the UK which suggests that companies and authorities in drawing up contracts should assume that either the information should be proactively put into the public domain or will at least be requested, and therefore should identify and preferably put into a side schedule, genuinely sensitive information and secondly, when you receive and FOI request, for goodness sake, not to assume that simply a certain commercial confidentiality is going to get you anywhere, it clearly will not.

Dunion: emphasised that there is no such thing as commercial confidentiality in FOI. Something is either confidential – and there are tight, technical definitions of that that don't include contracts like the ERI's – or it is commercially sensitive. And Dunion is perfectly prepared to put the public interest in revelation above commercial sensitivity.

Dunion: When dealing with commercial sensitivity the public interest has to be taken into account. I think that the public interest and expenditure are in excess of for example The Royal Infirmary of Edinburgh contract which is over £1 billion over thirty years. No doubt there is very significant public interest in getting transparency in that spending and the decision making, arising from that spending.

So how should private companies cope? The most important thing for now, says Pounder, is to heed the warning. He also offers practical advice which chimes closely with the Scottish commissioner's on how to put a contract together.

Pounder: It is a warning to the private sector to be very careful how you interact with the public sector. Where a private sector body interacts with a public authority it should be aware of the FOIs obligations that are around and be able to identify what information needs special protection and then if there were to be an FOI request to that information then the public authority should consult with the private sector body.

Private sector companies taking on public business, then, need to take significant care when dealing with FOI requests, and public authorities need to engage a little more with the process, perhaps, than NHS Lothian did. Dunion, for one, isn't giving up any time soon.

Dunion: The FOI Act should follow the money and if the money is being spent on public functions whether it is directly from the public authority or a private contractor then information about that should be made available to people and they should get as a matter of right not on a voluntary basis.

That's all we have time for this week, thanks for listening.

Magee: Why not get in touch with OUT-LAW Radio? Do you know of a technology law story? We'd love to hear from you on

Make sure you tune in next week; for now, goodbye.