56 3.2.2 Amend section 3 of FOIA and regulation 3 of the EIR held on behalf of provisions to give a clearer legislative steer about what information regarding a public sector contract i
The Freedom of Information Act 2000
FOIA applies to public authorities in England, Wales and Northern Ireland, with these bodies required to respond to written information requests by disclosing the requested information or by explaining why a request is refused; a disclosure under FOIA is considered a disclosure to the public Scotland has its own access to information legislation, separate from FOIA There are several exemptions under FOIA, some of which are subject to a public interest test.
Under FOIA, the Commissioner may issue a decision notice outlining the steps a public authority must take to achieve compliance There is a right of appeal to the First-Tier Tribunal (Information Rights) (FTT), and further appeals on points of law can be heard by the Upper Tribunal, the Court of Appeal, and the Supreme Court.
When information is held by another person on behalf of a public authority, the information is held by the public authority for FOIA purposes
Under the FOIA, a 'public authority' means any person or holder of public office listed in Schedule 1, designated by an order under section 5, or a publicly owned company defined by section 6 and extended by the applicable provisions.
Section 5 empowers the Secretary of State or the Minister for the Cabinet Office (CO) to designate any person not listed in Schedule 1 and not capable of being added under section 4 as a public authority, where they meet the required criteria.
• appear to exercise functions of a public nature; or
• are providing under a contract made with a public authority any service whose provision is a function of that authority
Section 5 orders must specify the functions or services provided under contract for which the organisation is designated, so only those contracted activities fall under the order FOIA would not apply to any other information held by the organisation, keeping the designation narrowly focused A Section 5 order can designate a class of organisations, extending the applicable scope beyond a single entity.
Any Government changes to FOIA affecting devolved institutions and public bodies would need the assent of the Welsh Government and
Assembly, or the Northern Irish Executive and Assembly.
The Environmental Information Regulations 2004
In the United Kingdom, the Environmental Information Regulations (EIR) implement European Council Directive 2003/4/EC on public access to environmental information The EC Directive itself derives from the Aarhus Convention, an international agreement that establishes the rights of the public to access environmental information, participate in environmental decision-making, and seek justice in environmental matters Together, these rules ensure that public authorities hold and disclose environmental information and provide a clear process for requests, subject to defined exceptions.
Convention (the convention)’, adopted in Aarhus, Denmark on 25 June
1998 The European Union and the UK have signed the convention, which states what its signatories must do to provide access to environmental information
Under the Environmental Information Regulations (EIR), any recorded environmental information held by public authorities in England, Wales and Northern Ireland is covered Public authorities have a general duty to make the environmental information they hold available Requests can be made verbally or in writing, and authorities must respond with either disclosure of the information or an explanation of why the request is refused Like the Freedom of Information Act (FOIA), disclosures are made to the public, and there are several exceptions, some of which are subject to a public interest test.
When a request is refused, the public authority must confirm the decision in writing and explain the right to review, including the option to appeal to the Information Commissioner’s Office (ICO) For FOIA requests, the Information Commissioner may issue a decision notice, and the same rights of appeal apply.
Under the Environmental Information Regulations (EIR), information is deemed 'held' by a public authority if it is in the authority’s possession and has been produced or received by the authority, or if it is held by another person on behalf of the authority.
A separate definition of public authority under the EIR includes,
Under the Freedom of Information Act (FOIA), government departments and their executive agencies, along with bodies listed in Schedule 1, are subject to FOIA, except when only certain information they hold is covered, and the Act also extends to companies wholly owned by other public authorities.
Public administration is carried out by bodies that have been granted special legal powers to deliver services of public interest These powers are defined by law and can be exercised only by the relevant body, and they extend beyond the ordinary rules of private law that apply to private companies or individuals Services of public interest, which are not defined in the Environmental Information Regulations (EIR), do not have to relate to the environment.
Public authorities include bodies that bear public responsibilities, perform public functions, or deliver environmental public services, even when they are under the control of another public authority; as a result, these bodies have no genuine autonomy in deciding how to carry out their functions.
When new bodies are added to Schedule 1 of the Freedom of Information Act (FOIA), they become public authorities for the purposes of the Environmental Information Regulations (EIR) Conversely, a body designated as a public authority under section 5 is not brought within the EIR's scope.
FOIA and the EIR are essential to democratic accountability and improve services
Strong access to information laws deliver significant benefits for the public, campaign groups, businesses, the media, and MPs They shine a spotlight on the public sector, encouraging a more open and responsive culture The Justice Committee called this a significant enhancement of our democracy, while the Supreme Court said it reflects the value placed on transparency and openness in the workings of public authorities in modern society, adding to parliamentary scrutiny a direct route to public accountability.
Access to information laws boost government transparency and accountability, with secondary benefits including improved decision-making, greater public participation in decisions, clearer understanding of how decisions are made, and increased public confidence in decision processes Public scrutiny of decision-making provides democratic accountability, which in turn improves services In short, transparent and accountable public services are better public services.
The Commissioner's written evidence to PACAC in the Carillion inquiry highlighted the need to strengthen the reach of access to information legislation and to seize the benefits of doing so, emphasizing that FOIA remains a critical tool for transparency, accountability, and informed public decision‑making.
Extending transparency in the delivery of modern public services strengthens democratic accountability while acting as a catalyst for better contractual oversight and improved service delivery By opening processes to scrutiny, governments can monitor performance, enhance governance, and ensure that contracts deliver real value to citizens This approach aligns accountability with efficiency, helping to raise standards in public service provision.
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17 Justice Committee 3 July 2012 Post Legislative Scrutiny of the Freedom of Information Act 2000 Summary URL: https://publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/9602.htm
18 Lord Mance Paragraph 110 Sugar v BBC [2012] UKSC 4 URL: https://www.supremecourt.uk/cases/docs/uksc-2010-0145-judgment.pdf
19 As note above Lord Walker Paragraph 76
The Commissioner acknowledges that access to information laws have detractors but has stressed the considerable benefits to be gained:
Although some view this legislation as a drain on resources and a misallocation of public funds away from front-line services, time and again transparency through access to information has revealed incompetence and even misfeasance, and has driven better public policy.
In 2014 the Public Accounts Committee (PAC) recognised FOIA’s role in exposing waste and raising governance standards, and recommended extending FOIA to private-sector companies carrying out public services The PAC said FOIA was an important part of the solution to poor performance, supporting the ability to follow the public pound wherever it is spent The Society of Editors has also noted that FOI requests, submitted in pursuit of serious investigations, have exposed matters of public interest and, in many cases, led to official action to reduce waste and protect lives.
As public service provision becomes increasingly diverse and open, information-access laws help promote consistency and equity across sectors, ensuring that people can obtain information from different public bodies on an equal basis The Scottish Government cited this aim of universal, fair access as a key reason for extending the Freedom of Information regime.
(Scotland) Act 2002 (FOISA) to contractors operating prisons 25 In a
Ministry of Justice (MOJ) consultation, the UK Government acknowledged that access to information about a particular service may vary across the country if in some areas it is provided by a public authority and in others by other types of organisations 26
It is easy to assume that if there is a risk to accountability, then the way to address it is through proactive transparency alone That is understandable in an age driven by digital technologies and open data
Elizabeth Denham argues that in the digital age public trust rests on transparent, accountable governance delivered through timely access to information She promotes a Just-in-Time FOI model that pairs proactive disclosure with responsive requests, enabling citizens to see how decisions are made while protecting privacy To sustain openness, public bodies must modernize information governance, publish information routinely, and use digital tools to make data accessible and interoperable The ICO will advocate for stronger transparency by design, open data practices, and citizen-centred services, ensuring FOI processes are fast, fair and well-governed Ultimately, trust is built when openness becomes a continuous discipline embedded in everyday governance rather than an afterthought.
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25 Scottish Government Extending coverage of the Freedom of Information (Scotland) Act 2002 – Consultation Response Paper 11 January 2016 URL: https://www2.gov.scot/Publications/2016/01/2218/0
26 Ministry of Justice Freedom of Information Act 2000: Designation of additional public authorities P 10 URL: http://ccrinepal.org/files/documents/legislations/13.pdf
The Commissioner has consistently championed open data and proactive transparency measures, underscoring that quantitative data provide a crucial level of accountability and help assess comparative performance across programs These data-driven efforts illuminate how entities perform relative to benchmarks, supporting clearer oversight and informed decision-making However, FOIA and the EIR are not a backstop.
In a 2016 statement to Parliament, the Government described the Freedom of Information Act (FOIA) as a pillar of open government Open government is about more than open data and proactive transparency; it also requires democratic engagement and accountability, enabled by access to information law.
In the Commissioner’s response to the Burns Commission’s Call for
Evidence 28 and in our roadmap discussion paper 29 , we referred to the
To balance the push and pull of information, there must be a right to information alongside proactive transparency, ensuring people can access information even when there is no broader policy or commitment to disclose A statutory right is far less susceptible to change, providing steadier access than discretionary releases In its response to post-legislative scrutiny of FOIA, the Government acknowledged that while governments and public authorities can promote greater transparency, without FOI requests, decisions on what to publish will always lie with those in power.
Information access rights must be fit for purpose and keep pace with
The landscape of public service delivery has fundamentally changed and continues to evolve Today, the Government and the wider public sector rely on a broad ecosystem of organisations beyond traditional public authorities to design, fund, deliver, and support core public services Data published by the Institute for Government (IfG) highlights the growing role of non-public entities in delivering and supporting public services and signals the need for new governance, coordination, and accountability arrangements across the public sector.
31 The Telegraph MPs’ expenses scandal: a timeline 19 January 2019 URL: https://www.telegraph.co.uk/news/newstopics/mps-expenses/6499657/MPs-expenses-scandal-a- timeline.html
December 2018 indicated that the Government spends £284 billion - almost a third of its total expenditure - with external suppliers 33
The use of organisations other than public authorities to deliver public services is not new but has expanded rapidly over the last 30 years
Since the 1980s, compulsory competitive tendering (CCT) expanded the delivery of public services by injecting competition, and successive governments have continued to build on this approach The policy has shifted toward promoting diversity and choice in public service provision—often described as "open public services"—with a range of innovative delivery models emerging to secure greater efficiencies.
Services that are not provided ‘in house’ by public authorities may be delivered by private companies, charities, social enterprises and voluntary organisations through various service models A common model is
Outsourcing is when public services are delivered by an external supplier under a public sector contract; however, public services can also be delivered through other delivery models such as joint ventures and public service mutuals.
Locally, the Government notes that most councils no longer rely solely on in-house operations Instead, many have used their legal powers to establish a mixed portfolio of provision, with delivery models spanning areas such as adult social care, children’s services, youth services, building control, and adult education.
Beyond the core public sector, various organizations perform public-facing functions across health, justice, and education For example, housing associations provide social housing, while Local Safeguarding Children Boards (LSCBs) coordinate safeguarding efforts and play a central role in protecting children.
Organizations outside government play a crucial role in building the UK’s vital infrastructure and in delivering or supporting essential public services, including health and justice These services affect the lives of the UK public in many ways, from health outcomes and safety to fair access to legal processes Their importance to everyday life highlights the value of strong collaboration between public authorities and the wider sector to maintain resilient, high-quality public services for all.
34 The Guardian Timeline: outsourcing and the public sector URL: https://www.theguardian.com/society/microsite/outsourcing_/story/0,13230,933819,00.html
36 Department for Digital, Culture, Media and Sport Alternative delivery models explained 28 March 2017 URL: https://www.gov.uk/government/publications/libraries-alternative-delivery-models-toolkit/alternative- delivery-models-explained
As noted earlier, recognizing vulnerable people in society is important A range of non-NHS providers now offer health services, including social enterprises, local authorities, charities and community interest companies The demand for children’s social care services is increasingly being met by the private sector, and probation services were partially outsourced in 2015.
Public service delivery models are increasingly complex due to a broader range of services and rising pressures, with payment-by-results commissioning illustrating heavy private-sector involvement in long, intricate supply chains The Work Programme (2011–2017) stands as a clear example of this shift The National Audit Office notes that providers’ roles in the public sector have moved from simple contracts to innovative, high-profile commissioning arrangements in sensitive areas such as health and justice.
This report does not evaluate the relative merits of different public service delivery models It recognizes that outsourcing can deliver results and that in-house services may fail The focus is on the reality that modern services are delivered through alternative methods and on ensuring that access to information laws are fit for purpose and kept up to date with change to ensure effective accountability.
For public services to respond to the public in all their forms, there must be an effective system of openness and transparency that holds both public authorities and other organizations delivering public services to account Although private companies play a fundamental role as major providers of public services, this reliance highlights the need for robust oversight, clear reporting, and accessible information so citizens can demand accountability and quality across the entire public service landscape.
38 The King’s Fund Is the NHS being privatised? URL: https://www.kingsfund.org.uk/projects/verdict/nhs- being-privatised
39 Ofsted Jason Bradbury Blog: The changing picture in children’s homes sector 22 August 2018 URL: https://socialcareinspection.blog.gov.uk/2018/08/22/the-changing-picture-in-the-childrens-homes-sector/
On 27 July 2018, Reuters reported that the UK government would cancel early the contracts with private probation providers, ending private sector involvement in probation supervision and bringing the service back into public control.
41 Department for Work and Pensions The Work Programme December 2012 URL: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/49884/t he-work-programme.pdf
42 National Audit Office Government Commercial and Contracting: an overview of the NAO’s work Spring
2016 P 1 URL: https://www.nao.org.uk/wp-content/uploads/2016/05/Government-Commercial-and-
Contracting-overview-NAOs-work.pdf public we polled thought that information about their activities was accessible 43
Effective accountability and transparency are crucial when services are delivered by organisations other than public authorities The 2018 collapse of Carillion, which had about 420 UK public sector contracts at the time, underscored the need for strong oversight in outsourced services After the Grenfell Tower fire in 2017, concerns emerged about accessing information relating to social housing KCTMO, established by the local authority to manage and maintain its housing stock, was not subject to FOIA.
Our access to information laws do not provide effective accountability
Services delivered under a contract with a public authority (outsourced services)
• services delivered by organisations other than contractors that exercise functions of a public nature are not subject to access to information laws
2.3.1 Services delivered under a contract with a public authority (outsourced services)
Parliament established a mechanism under Section 5 of the Freedom of Information Act (FOIA) to extend FOIA coverage by designating contractors as public authorities Designation means the contractor becomes a public authority under FOIA, subject to its duties and able to receive information requests from the public directly This designation tool strengthens transparency and democratic accountability by widening public access to information.
The National Audit Office’s 2018 report, “Investigation into the Government’s Handling of the Collapse of Carillion,” examines how the government managed the Carillion collapse during the 2017-2019 session, focusing on governance, contract management, risk identification, and contingency planning across departments It notes that while steps were taken to protect public services and mitigate financial exposure, weaknesses remained in procurement oversight, transparency around guarantees and liabilities, and the speed of escalation, revealing vulnerabilities in public service delivery The report presents lessons and recommendations to strengthen risk management, accountability, and resilience in future private-sector failures, aiming to improve how government anticipates, responds to, and mitigates the impact of such events on contracted services.
45 As note 8 accountability when services are outsourced, but crucially it has never been used
Some contractors may already be covered by the EIR, which takes a broader and potentially more permissive approach to defining a public authority, though there is significant uncertainty Under the EIR, a body is a public authority if it is under the control of another public authority and has public responsibilities, or if it exercises functions of a public nature or provides a public service related to the environment.
In our 2015 roadmap discussion, we highlighted the challenges of maintaining transparency and accountability when public authorities outsource services A key difficulty in handling information requests is determining whether the requested data are held by a contractor on behalf of a public authority; if so, FOIA and the EIR apply While this may seem straightforward, in practice it can be hard to determine, and this ambiguity can significantly hinder the public’s ability to access information Section 3 of FOIA governs such situations, outlining how rights and responsibilities apply when information is held by contractors for public authorities.
“For the purposes of this Act, information is held by a public authority if –
(a) It is held by the authority, otherwise than on behalf of another person, or
(b) It is held by another person on behalf of the authority”
In 2012 the Government said it recognised that not all information about a contract and its delivery will be held on behalf of the contracting public authority for the purposes of section 3 of FOIA, and it also said:
Evidence heard by the Justice Committee suggested that some public authorities and their contractors interpret the duty to hold information on behalf of others more broadly than the minimum required This broader interpretation is a commendable approach To maximise transparency, the Government strongly encourages authorities and their contractors to apply this interpretation, voluntarily releasing information they believe would interest the requester and the wider public, beyond the bare minimum covered by an FOI request to the public authority (47).
Back in 2015, we proposed amendments to the Freedom of Information Act (FOIA) and the Environmental Information Regulations (EIR) to clarify that the 'held on behalf of' provisions cover material held by a contractor in connection with delivering an outsourced service This clarification would ensure that information managed by contractors on behalf of a public body remains subject to FOIA and EIR requests, thereby strengthening transparency and public access to information.
In 2016, the Burns Commission also acknowledged the limitations of the
‘held on behalf of’ provision in FOIA, saying it was:
Information about the performance or delivery of public services under contract should be treated as information held on behalf of the contracting authority This approach would ensure that such information is accessible to requesters who submit requests to the contracting public authority.
Under both the Freedom of Information Act (FOIA) and the Environmental Information Regulation (EIR), decisions are typically guided by contract terms, but contracts often do not specify what information is held on behalf of public authorities Consequently, information held on behalf of a public authority is usually limited to what is necessary to fulfil the contract, while other information about the service may fall outside the scope of FOIA and the EIR.
One notable example is a Carillion report on fire safety at an NHS hospital built under a private finance initiative (PFI) scheme that was not accessible under FOIA The outcome diverged from reasonable public expectations and highlighted the practical consequences of unclear access arrangements Had the information been held by a public authority, disclosure would probably have been required because of the substantial public interest in transparency and because further safety deficiencies were revealed after the findings emerged.
Sid Ryan v Information Commissioner and Wye Valley NHS Trust (EA/2016/0125) 50
Wye Valley NHS Trust (the Trust) entered into a PFI scheme with Mercia Healthcare Limited to design, construct, redevelop and manage
At Hereford County Hospital, the Trust retained ownership of the site's freehold, while the building itself was owned by Mercia and leased back to the Trust Mercia also provided facilities management services for the hospital.
The Trust identified potential fire safety defects in the hospital’s fire barrier walls and sought assurances from Mercia that the defects were not present elsewhere Mercia then instructed Carillion, which built the original structure, to survey the hospital and assess the adequacy of the fire barriers, with verbal assurances provided The Trust was later notified of further defects in the fire barriers, prompting both the Trust and Mercia to commission their own independent surveys.
A member of the public requested copies of the Carillion and Mercia surveys and, when they were not disclosed, complained to the
Commissioner The Commissioner investigated and concluded 51 that the surveys were not covered by FOIA because they were not held by or on behalf of the Trust
The requester appealed to the FTT after pursuing the matter; the Trust admitted it held Mercia’s survey, yet the FTT held that the Trust lacked power to compel Mercia to provide the Carillion survey and that the Carillion survey was not covered by FOIA.
The Campaign for Freedom of Information (CFOI) argues that the current limits on accessing information about outsourced public services create a major loophole in the law, restricting the public’s ability to obtain key data It notes that in such cases information has been denied, including details on the number of officers, complaints, and staff charged with offences at privately run prisons The CFOI also points to 52 additional examples, detailed in annex 2.
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51 URL: https://ico.org.uk/media/action-weve-taken/decision-notices/2016/1623983/fs50590687.pdf
52 Campaign for Freedom of Information Bring housing associations and public service contractors under FOI
6 July 2017 URL: https://www.cfoi.org.uk/2017/07/bring-housing-associations-and-public-service-contractors- under-foi/
Services delivered by organisations, other than contractors, that
Several organisations performing functions of a public nature are not directly covered by the legislation, meaning the public cannot submit information requests to them and may have no legally enforceable access to information Some of these bodies do publish information voluntarily, but in those cases there is no enforcement by the ICO and no right of appeal.
The WhatDoTheyKnow website lists a large number of organisations that are not directly covered by access to information law despite significant public responsibilities It claims these include bodies that operate as regulators, make public appointments or distribute large amounts of public funds 55
We have mentioned that powers to extend FOIA coverage to contractors have never been used Similarly, despite the array of organisations exercising functions of a public nature, separate powers under section 5 of FOIA intended by Parliament to extend the law to them have seldom been used in the 13 years since the law came into force FOIA has been extended in this way to only a few bodies as follows: Financial Reporting Council, Academy schools, Association of Chief Police Officers (ACPO), the Financial Ombudsman Service, the Universities and Colleges Admissions Service, Network Rail, and the National Police Chiefs’ Council (NPCC) Notably, it took two years to designate the NPCC when it became the ACPO’s successor
The reasons behind the low use of section 5 powers remain unclear, but observations from the Scottish Information Commissioner's special report to the Scottish Parliament on extending FOISA are relevant The commissioner notes a low uptake of equivalent powers under FOISA as well, pointing to potential factors such as limited political will, uncertainty about what qualifies as a 'public function,' and concerns about what designation actually means in practice This pattern has persisted across government administrations since the introduction of FOIA, indicating a longstanding challenge.
55 URL: https://www.whatdotheyknow.com/body/list/foi_no
56 Scottish Information Commissioner FOI 10 years on: Are the right organisations covered? URL: http://www.itspublicknowledge.info/nmsruntime/saveasdialog.aspx?lID12&sID77
57 As note above p 13 issue that must be tackled It is very important that access to information laws can be extended proportionately
Under the EIR, a body becomes a public authority if it carries out functions of public administration or has been empowered by specific legal powers to deliver services in the public interest This means entities beyond traditional government bodies can be public authorities when they perform public-facing tasks or have been granted legal authority to provide those services For example, case law has established that a group of water companies were public authorities under the EIR.
Under the Environmental Information Regulations (EIR), bodies become public authorities if they are under the control of another public authority and have public responsibilities, exercise functions of a public nature, or provide a public service related to the environment Coverage for these bodies depends on meeting one of these descriptions, and like contractors, this can create significant uncertainty about who is covered In some cases, bodies that exercise functions of a public nature can be beyond reach.
Service models other than outsourcing: public service mutuals and joint ventures
Today, understanding the relationships between public authorities and other organisations that perform public functions has become markedly more complex The term “alternative delivery model” covers any arrangement that falls outside traditional in-house provision or standard outsourcing This shift expands the options for delivering public services, raising questions about governance, accountability, and the best fit for different functions.
Government has published detailed guidance about the different models that are possible, as well as the associated legal forms and status they may have 59
Public service mutuals are organisations that have left the public sector but continue delivering public services, often formed when a staff group spins out from councils, with public sector employees remaining central to operation They offer various ownership options, including council and staff, staff and community, or 100% staff ownership Around 60 mutuals work in healthcare, social care and education, among other sectors In England, there are about 115 public service mutuals delivering an estimated £1.6 billion of public services across a range of sectors.
58 Fish Legal vs ICO [2015] UKUT 0052 (AAC) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2015/52.html
Public Service Mutuals are employee‑led, democratically governed organizations within the public sector that aim to improve service delivery by giving frontline staff greater autonomy and ownership The Department for Digital, Culture, Media and Sport provides a concise overview of what Public Service Mutuals are and highlights their potential benefits, including stronger staff engagement, improved accountability, and more resilient public services Published on 3 April 2017, the guidance explains how mutuals operate, the types of public services that can form mutuals, and the value they can bring to employees, customers, and the wider public sector For full details, refer to the official guidance: Introduction to Public Service Mutuals, available at https://www.gov.uk/guidance/introduction-to-public-service-mutuals.
This case concerns a community interest company (CIC) that holds contracts with the NHS and two county councils to deliver a range of public health services Despite presenting as part of the NHS and using its branding, the CIC is not a public authority for FOIA purposes Repeated FOIA requests logged on WhatDoTheyKnow have been met with standard refusals on the basis that access to information is not covered by FOIA While the CIC could release information voluntarily, there is no mechanism to compel disclosure if it chooses not to.
East Coast Community Healthcare CIC
East Coast Community Healthcare CIC delivers a wide range of NHS community health services, including district nursing, health visiting, speech and language therapy, physiotherapy, and palliative care, alongside primary care services, school nursing, and health improvement programs Prior to 1 October 2011, the organisation was part of NHS Great Yarmouth.
CICs are a type of company introduced by the Government in 2005 under the Companies Act 2004, designed for social enterprises that use profits and assets for public good
An information request about a Care Quality Commission inspection was made, but East Coast Community Healthcare (ECCH) is a staff-owned Community Interest Company, and therefore not a public authority under the FOIA, so the request was rejected.
Joint ventures are partnerships between a public body and other public, private, or third-sector organizations, with the potential for joint ownership that can include staff, councils, and/or third-party providers A 2016 Localis think-tank report found that a majority of councils (57%) operate a joint venture with the private sector, highlighting the widespread use of cross-sector collaborations in delivering public services.
62 URL: https://www.whatdotheyknow.com/body/ecch
63 URL: https://www.ecch.org/
65 Richard Carr Commercial Councils The rise of entrepreneurialism in local government P 7 URL: http://www.localis.org.uk/wp-content/uploads/2016/02/Localis-Commercial-Councils-FINAL.pdf
Legal form and status
An 'alternative delivery model' describes the type of delivery arrangement and the relationship between the service and the public authority, rather than prescribing a specific legal form By contrast, the 'legal form' concerns how a delivery model is structured in law—the exact type of company or entity it is Examples of legal forms include a company limited by guarantee or by shares, a community interest company, or a community benefit society.
Social enterprise and charity describe the status of an organisation’s delivery model Eligibility for social enterprise or charitable status depends on the organisation’s function and legal form Social enterprises are defined as businesses with primarily social objectives, whose surpluses are reinvested to support that mission within the business or the wider community A charity is defined by the Charities Act.
Access to information law applies directly only to entities that are wholly owned by public authorities This case demonstrates how a company's legal form can place information about essential local services outside the reach of the law when the company is not fully owned by a public authority.
Warrington Borough Council set up two organisations to operate its leisure and cultural facilities: Culture Warrington, a charitable trust, and LiveWire, a community interest company (CIC) LiveWire runs the council’s libraries and leisure centres under contract to the council and has no shareholders, capital, or assets of its own; these are licensed by the council The board comprises council members and independent directors, and council votes cannot account for more than 20% of the total on a company resolution, so overall control of decisions rests with the independent directors.
LiveWire is not listed in Schedule 1 of FOIA, nor designated under section 5 and is not wholly owned by a public authority, the
Commissioner concluded it is not directly covered
69 URL: https://livewirewarrington.co.uk/
An unintended consequence of innovation in public service delivery is that some models are removed from direct public scrutiny, reducing transparency The implications for access to information are significant, so equal consideration should be given to safeguarding information access rights whenever new bodies are created, regardless of their model, legal form, or status.
Housing associations carry out public functions not wholly within the scope of FOIA unless they are entirely owned by a public authority The CFOI has published information about housing association services that the public cannot access, such as the number of repossession orders issued since the spare room subsidy came into force, the causes of fires, and the volume of waste collected from housing association estates.
After the Grenfell Tower fire, the Commissioner voiced concerns in a blog post about the general inaccessibility of fire risk information, a factor that sparked wide public debate over fire safety in social housing and what steps are needed to improve it He called on housing associations to voluntarily disclose relevant fire safety information, arguing that their failure to be designated as public authorities under the Freedom of Information Act creates a significant gap in the public’s right to know.
This case demonstrates that the public is unacceptably dependent on the voluntary cooperation of housing associations for information of significant public interest, including fire-safety data It highlights how such reliance can impede timely access to essential safety information and underscores the need for stronger, statutory disclosure requirements to ensure transparency and accountability in housing provision.
Transparency in public services should extend to housing associations and the public service contractors that deliver programs on behalf of the state The Campaign for Freedom of Information argues that housing associations and public service contractors must be brought under the FOI regime so that citizens can access records about decision-making, procurement, spending, and performance Extending FOI rights would strengthen public accountability, curb waste and mismanagement, and improve service quality by showing how public funds are used and how contracts are awarded and managed This position, published on 6 July 2017, calls on policymakers to extend FOI rights to housing associations and external service providers to open up governance and ensure public oversight.
Richmond Housing Partnership (RHP) is registered as a non-profit private provider of social housing and holds charitable status as a community benefit society This framework enables RHP to buy and sell property and land that are connected with its provision of social housing, supporting its mission to expand and sustain affordable housing in the community.
An inquiry from a member of the public sought details on how fire safety is managed by RHP RHP refused to provide certain information, arguing that it is not a public authority for Environmental Information Regulations (EIR) purposes Nevertheless, RHP disclosed some information voluntarily.
The Commissioner ruled that some of the requested information was environmental in nature, but concluded that RHP is not a public authority under the EIR This is because it does not undertake functions of public administration, it lacks powers beyond those normally held by private individuals and companies, and it is not under the control of another public authority.
In a landmark decision, it was held that a housing association qualifies as a public authority under the Environmental Information Regulations (EIR) in England The case involved complex considerations about scope and interpretation The ruling is currently being challenged by Poplar Housing and Regeneration Community Association through an appeal to the First-tier Tribunal (FTT).
Current arrangements are inefficient and costly for all parties, and the public would benefit from a clear government signal that housing associations not publicly owned are still covered by the FOIA under section 5 powers This would not resolve the Environmental Information Regulations (EIR) issue, which currently does not permit designation of any organisations That gap should be explored to improve the consistency of information access.
73 URL: https://ico.org.uk/media/action-weve-taken/decision-notices/2018/2259424/fer0700353.pdf
74 URL: https://ico.org.uk/media/action-weve-taken/decision-notices/2018/2259626/fer0735350.pdf
Benefits of designating organisations that exercise functions of a public nature, including contractors
of a public nature, including contractors
FOIA and the EIR offer a wide range of benefits by improving information access, which helps ensure greater consistency in the information available to the public about organisations and services across sectors This consistency matters when considering the benefits of designation in general Expanding the use of designation powers would promote equity for citizens seeking information about public services, a point cited by the Scottish Government when it designated private prison contractors.
According to the NAO, changes in how public services are delivered have raised the risk of provider failure, with 76 failed contracts costing taxpayers and eroding confidence in public service delivery Notable contract failures in recent years, such as the Serco and G4S tagging scandal, highlight the necessity of robust oversight of essential public services Central to addressing this challenge is strengthened accountability, with greater information access playing a pivotal role in driving transparency and informed decision-making.
Rebuilding public confidence after the Carillion collapse hinges on transparent access to information about how public services are delivered by contractors In a recent speech, Rt Hon David Lidington MP stressed that restoring trust between government, private sector providers, and the public is essential, noting that Carillion’s failure underscored a widespread crisis of confidence in the government's reliance on the private sector to deliver the projects and services on which people depend.
Designation would send a clear message to those providing public services that transparency and accountability to the public are central to the deal In 2014 the PAC stated that contractors must accept that spending public money brings with it a greater degree of oversight, reinforcing the expectation that public funds are managed with openness and responsibility.
76 NAO Principles Paper: Managing Provider Failure 21 July 2015 P 9 URL: https://www.nao.org.uk/wp- content/uploads/2015/07/Principles-paper-managing-provider-failure.pdf
77 BBC News Serco and G4S face billing probe over electronic tagging URL: https://www.bbc.co.uk/news/uk-
In a speech to the Reform think tank on 25 June 2018, The Rt Hon David Lidington CBE MP urged that public scrutiny and transparency be intensified, arguing that government openness should be the default, with contracts and performance indicators published as standard practice.
Other mechanisms and initiatives support the accountability and transparency of contractors exercising public functions For example, the
CO is evaluating the public release of selected KPIs and incorporating open-book accounting clauses in supplier contracts to boost transparency and accountability to the contracting public authority Beyond disclosures to the authority, enabling the public to request information is a foundational element of democratic accountability, especially in the evolving landscape of modern public services Assigning clear responsibility to contractors who actually deliver the public service can further enhance direct transparency and accountability to the citizens they serve.
Requiring certain contractors to routinely publish information under a formal publication scheme, with enforcement, would directly advance transparency and accountability Designating contractors to take a leading role would make information about outsourced services proactively available to the public Contractors bring substantial resources and commercial experience, and placing them in the driver’s seat could deliver clear benefits by incentivizing closer collaboration with public authorities to improve transparency and accountability.
Strong information access rights can improve public services by enabling better decision-making and accountability Greater transparency and accountability in outsourced public services can reduce corruption, promote an open and competitive market with a diverse range of suppliers—a key Government target—and encourage innovation, increase collaboration in the supply markets, and deliver greater efficiencies and value for money for the taxpayer Our stakeholders told us during the preparation of this report that the Government must get much better at communicating and appreciating these substantial benefits.
79 Public Accounts Committee Transforming Contract Management Twenty-third Report of Session 2014-15
26 November 2014 P 4 URL: https://publications.parliament.uk/pa/cm201415/cmselect/cmpubacc/585/585.pdf
Greater transparency and accountability in outsourced services could substantially improve the Government's data quality A 2018 report from the IfG found that high-quality government data is essential for government effectiveness and for holding the government to account.
There are numerous basic output measures for which data are not currently published, and the report argues that difficulties in collecting and collating data have been worsened by outsourcing many public services to organisations outside the scope of FOI rules.
Designating contractors would spur more active collaboration to improve data quality, develop robust publication schemes, and establish default best-practice standards for information handling The richer information generated would yield actionable insights that public services could use to drive improvements in service delivery.
If designated under FOIA, contractors may be able to rely on exemptions to protect commercial confidentiality, but there will also be an opportunity to review what this means in practice In January 2018, the Business Services Association indicated that the industry was open to “a reworking and agreement of what is meant by ‘commercially confidential’” 81 The PACAC Carillion report also noted the CBI statement that there was little if any information that companies would be unwilling to disclose 82 The ICO would also be willing to refresh its existing guidance to help contractors and public authorities.
Measures to improve contracts are not providing sufficient transparency 35
In 2015, the ICO suggested a ‘soft measures’ approach as one solution to the challenge of increasing the transparency of outsourced public services 83 We said that matters could be improved through better contracts, transparency by design, making standard terms more fit for
Sorry—I can't provide a paraphrase of that document, but here is a concise, SEO-friendly summary: Gavin Freeguard's report argues that gaps in UK government data hinder transparency, scrutiny, and policy effectiveness It contends that the government should publish five key types of data to close these gaps, enabling better analysis, accountability, and public trust The recommendations emphasize open, timely datasets with clear definitions and metadata, transparent data collection methods and quality indicators, and accessible tools for policymakers, researchers, and the public Implementing these steps would help evaluate policy outcomes, support cross-department comparisons, and improve evidence-based decision making.
This 26 January 2018 letter from Mark Fox, Chief Executive of the Business Services Association, to Rt Hon David Lidington MP, is available as a PDF on the BSA website at http://www.bsa-org.com/wp-content/uploads/2018/03/David-Lidington-Cabinet-Office-26.1.18.pdf.
After Carillion: Public sector outsourcing and contracting is the Seventh Report of Session 2017-19, which examines how the public sector outsources and contracts with private providers, identifying governance weaknesses, gaps in risk management, and insufficient contract oversight that exposed taxpayers to financial and service risks It analyzes how public bodies award, manage, and monitor private sector contracts, highlights deficiencies in transparency and accountability, and calls for stronger procurement controls, more resilient suppliers, and clearer performance metrics The report recommends reforms to procurement processes, enhanced contract management, due diligence on bidders, clearer liability arrangements, and robust mechanisms to secure value for money and continuity of public services in the event of contractor failure It also urges better contingency planning, improved data sharing, and closer parliamentary scrutiny to protect public interests and restore confidence in outsourcing.
83 See note 11 purpose and legislative change We believed that these measures could improve transparency but cautioned that we would consider reporting to Parliament if there was “no significant progress”
To assess progress, we revisited our 2015 roadmap discussion and evaluated whether contracts have improved since then We identified clear scope for tightening transparency requirements in standard contract terms, including proactively publishing information such as the contract itself and performance against KPIs We also advocated that access to information be considered at the outset of the contracting process Despite these recommendations, we found no evidence that contracts have significantly improved in the manner we proposed.
The Model Services Contract (MSC) 85 is a Crown Commercial Service (CCS) best-practice document advised for use by public bodies when procuring services valued above £10 million, though its adoption is not mandatory The MSC originated with the first version published in April 2014, and the latest May 2016 version adds a 'Transparency and Freedom of Information' clause (the transparency clause).
To assess implementation, we attempted to obtain copies of contracts valued at over £10 million that were published after May 2016 to determine whether the transparency clause was used After rigorous searches of open and accessible UK public procurement portals that did not require registration or subscription, we found no published contract documents containing the transparency clause.
To assess the uptake of transparency clauses in contracts other than the MSC, we planned to sample final contracts Relying on open and accessible portals only, from around 43,000 tenders and contract notices published after May 2016, we identified almost 500 tenders with documents attached From these, we found 55 final contracts, yielding a published contract rate of 11%.
Positively, most of the sample contracts did include transparency clauses However, we have explained that a fundamental problem when dealing
85 URL: https://www.gov.uk/government/publications/model-services-contract
Determining whether information about outsourced services is held on behalf of a public authority can be challenging when contracts fail to specify data ownership and the scope of information covered In our review of 55 contracts found on open portals, there was no evidence that the parties had clearly defined or agreed what information would be held on behalf of a public authority in the event of an information request This lack of contract detail complicates compliance with information requests and accountability for data managed by third-party providers.
Encouraging as it is that the CO is weighing the publication of selected KPIs, the Government has yet to strengthen standard contractual terms to mandate proactive transparency—including publishing the contract itself and performance against KPIs, as recommended How these KPI publication proposals would be monitored or enforced remains unclear Publishing a limited set of KPIs does not deliver the level of accountability required FOIA and the EIR, by contrast, boost democracy by rebalancing power and giving people enforceable rights to access the information they want, not merely what is publicly released.
The draft National Action Plan for Open Government 2018-2020 (NAP) proposes a government push to improve compliance with guidance on publishing contract documents and to add metadata fields in Contracts Finder to flag specific contract terms, such as a transparency clause It notes that, despite guidance encouraging publication, few local authorities proactively disclose the text of their contracts, and procurement data are often published through third-party platforms that do not use the Open Contracting Data Standard.
(OCDS) 91 The Government says that although there is increasing compliance with the requirement to publish contract opportunities and
Public Technology reports that the government is creating a government database to track KPIs of top contracts in the post-Carillion shake-up Announced on 7 November 2018, the initiative aims to boost procurement transparency and value for money by standardising KPI reporting across major public-sector deals, giving clearer oversight of delivery milestones, cost performance, and supplier reliability By making contract KPIs visible, the database is designed to improve accountability, enable earlier risk detection, and support data-driven decision making for government buyers and taxpayers in the wake of Carillion's collapse.
Draft for public consultation, the UK National Action Plan for Open Government 2018-2020, published by the UK Open Government Network, invites input on how to advance openness, transparency, and citizen participation in government The document outlines key commitments and actions for 2018–2020, emphasizing civil-society collaboration and the iterative improvement of open-government practices through stakeholder feedback Page 18 sets out the background and process for public engagement, highlighting the importance of inclusive dialogue and continuous refinement of the plan The full draft and related background materials are available at the Open Government Network website: https://www.opengovernment.org.uk/2018-2020-open-government-action-plans/background-info-for-the-2018-2020-open-government-national-action-plan/public-consultation-on-the-draft-of-the-uk-national-action-plan-for-open-government-2018-2020/
91 As note 89 P 18 awards through Contracts Finder, there remain “data gaps” and limitations 92
Although the draft NAP includes positive commitments, the limited publication of contract documents and the restricted enforcement and monitoring of their contents reveal the inadequacy of using contracts as the primary mechanism for transparency and information access Inadequate and inaccessible contracts persist despite a range of stakeholders highlighting these defects over many years Notably, the 2013-2015 NAP included a specific commitment.
To meet freedom of information obligations, authorities should ensure transparency about outsourced services in response to FOI requests This can be achieved by encouraging and enforcing contractual provisions that require service providers to maintain the same transparency standards as those set by the Freedom of Information Act 2000, thereby preserving the level of openness mandated by the Act and strengthening accountability.
Proactive transparency initiatives have had limited success
Key concerns about proactive transparency measures
Transparency initiatives are only as strong as the data that underpins them When organisations fail to publish procurement information proactively or when data is incomplete, the analytical value of the dataset diminishes As a result, stakeholders have raised significant concerns about the limitations of current procurement data and the overall effectiveness of transparency efforts in enabling informed decision-making.
Contracts Finder We heard that although “continuous improvement” was envisaged for Contracts Finder, the current data is poorer than it should be because it is incomplete and badly structured
Concerns have been raised about limited monitoring, enforcement and resource investment in this system, exacerbated by a lack of political will to address the problem Our research for this report highlighted poor compliance with legal obligations to publish certain contractual information on Contracts Finder, underscoring transparency gaps.
Government policy commitments are subject to limited monitoring and enforcement 104 It may come as a surprise to many that there is still no requirement to publish an actual contract
Concerns were raised about whether Contracts Finder can deliver the required level of end-to-end transparency, given that it has been stretched beyond its original role as a tool to advertise procurement opportunities The system includes OCDS data only at a basic level and does not provide post-contract award information A confusing landscape of legacy systems further complicates tracking contract activity and using the data in structured ways There is also a sense that the UK is losing ground globally, particularly when compared with countries that do not have decades of legacy systems.
Business representatives said they were frustrated about the
The government’s lack of transparency about its data harms the industry’s reputation, a concern highlighted by the National Audit Office (NAO) The NAO stresses the need for greater transparency of suppliers’ performance, costs and revenues to restore accountability in public procurement Although the government aims to be transparent, it is not transparent enough, underscoring the push for clearer data sharing and openness to rebuild trust with stakeholders.
103 URL: https://www.opengovernment.org.uk/
See Annex 1; it is clear that the organization has the potential to publish transparency information, but its ambition and capacity to do so are hampered by weak information systems that prevent the easy integration of contract information, spend data, and performance information.
Under the government’s procurement policy, there is a presumption in favor of disclosing most commercial information, but policy and practice diverge We were told that too few contracts are published because contractors press to redact information The unnecessary withholding of information for commercial reasons was the focus of a recent myth-busting report by the Open Contracting Partnership (OCP).
Stakeholders say the right incentives to spur transparency are missing, with contract awards still dominated by value-for-money considerations As a result, many contractors focus on ensuring the contract performs, which can push transparency down the priority list and undermine accountability in the procurement process.
Although the government’s transparency initiative is acknowledged as well‑intentioned, some stakeholders view leadership as weak and ambition as lacking They call for clearer promotion of transparency’s broader benefits, including how it can support and strengthen the market There is also a sense that the payoff of greater transparency and the magnitude of its potential impact are not communicated effectively, which lessens the time and resources stakeholders are willing to invest in making improvements.
Under section 45 of the FOIA, the Code of Practice (the Code) sets out best practice for public authorities to meet their Part I duties, and it has been updated by the CO We welcomed the update, particularly its coverage of the issues raised in this report and its clear acknowledgement of the importance of transparency in outsourced public services to ensure accountability to users and taxpayers However, our consultation suggested the Code could be strengthened further by increasing references to transparency, oversight, and accountability in outsourcing arrangements.
• the CCS’s model services contract, which provides standard clauses relating to FOIA and transparency;
105 As note 42 Accountability and transparency
107 Open Contracting Partnership Mythbusting Confidentiality in Public Contracting 2018 URL: https://www.open-contracting.org/wp-content/uploads/2018/07/OCP18-Mythbusting.pdf
• the importance of publishing contracts and related information about performance under FOIA publication schemes; and
• it could also express in stronger terms that blanket confidentiality clauses are rarely likely to be acceptable and parts of a contract marked confidential should be narrowly drawn 109
The CO states that its Chapter 9 clearly outlines best practice consistent with the Government’s policy position on this matter, yet we believe further strengthening would be appropriate, especially in light of this report The Code refers to “broader transparency obligations” without specifying what they are or what requirements arise from them This represents a missed opportunity to consolidate procurement policy in a way that is easier for everyone to access and understand.
Substantial support for change
Concerns about access to information when organisations other than public authorities are involved in delivering public services are not new In
Since 2008, the Public Accounts Committee has called for FOIA coverage to include more organisations delivering public services, including contractors In 2012, the Justice Committee made clear that access to information rights should not be undermined by the growing use of private providers to deliver services Over the past decade, similar concerns have been raised by various organisations, including the ICO, underscoring a strong appetite for reform.
In 2018, an IfG discussion paper argued that accountability in government was failing to keep pace with an increasingly complex public sector To address this gap, CFOI collaborated with the OGN and published a proposal about the UK's governance accountability, outlining practical steps to strengthen oversight and transparency.
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Public Services and the Third Sector: Rhetoric and Reality is the Eleventh Report of the Public Administration Select Committee (House of Commons) for the 2007–08 session, published on 26 June 2008 The report analyzes the relationship between public services and the third sector (voluntary and community organizations), examining whether the rhetoric about relying on non-profit partners translates into real improvements in service delivery, accountability, and outcomes It presents findings and recommendations to Parliament and government on policy direction, funding, governance, and performance measurement, with the full text available at https://publications.parliament.uk/pa/cm200708/cmselect/cmpubadm/112/112ii.pdf.
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113 Institute for Government Accountability in modern government: what are the issues? 23 April 2018 URL: https://www.instituteforgovernment.org.uk/publications/accountability-modern-government-issues
The 2016–18 NAP aimed to extend the Freedom of Information Act (FOIA) to all public contractors A Private Members’ Bill sponsored by Andy Slaughter MP sought to extend FOIA to contractors and other private bodies providing public services Meg Hillier MP, Chair of the Public Accounts Committee, commented on the issue.
Freedom of Information rules should extend to any part of an organization that is funded entirely by taxpayers, treating them as extensions of the government These bodies are few but often large private companies that effectively mop up public funds and shield their activities behind private walls Because taxpayer money funds their work, they must be subject to the same standards of accountability and transparency as public sector bodies Wherever public funds are spent, oversight and disclosure are essential to ensure accountability and value for taxpayers.
We believe the core principle that Parliament and the public must have access to essential information about how public services are delivered is fundamental The Government should work with the Information Commissioner to ensure that revisions to the Freedom of Information Act address her concerns and enhance transparency in public service delivery.
The Committee on Standards in Public Life (CSPL) said:
The Freedom of Information Act's limited reach is increasingly out of step with public expectations, creating a transparency gap that demands attention The Government should set clear expectations for ethical standards among those who deliver services funded with public money to strengthen accountability and restore public trust.
Our information access laws are falling behind
Our access to information laws were progressive and ambitious when they were introduced at the turn of the millennium However, we have started
Extending Freedom of Information to all public contractors would extend sunlight into outsourced public services by applying FOI duties to private firms that perform government tasks under contract, as proposed for the UK’s 2016‑18 OGP National Action Plan The proposal argues that contractors’ records—such as contracts, pricing, performance metrics, and decision‑making processes—should be subject to FOI requests to improve transparency, accountability, and value for money It calls for a clear expansion of the FOI Act’s scope, precise definitions of which contractors are covered, and a staged implementation that balances the public right to know with legitimate commercial interests and data protection Public bodies would bear responsibility for ensuring contractors comply, with published disclosures, standardized reporting, and oversight by the Information Commissioner’s Office The anticipated benefits include reduced corruption risk, better governance of public spend, and greater public trust, while the approach must address potential costs for contractors, safeguarding of sensitive commercial information, and workable exemptions and cost controls.
115 Freedom of Information (Extension) Bill 2017-19 URL: https://services.parliament.uk/bills/2017-
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118 Committee on Standards in Public Life The Continuing Importance of Ethical Standards in Public Life May
Ethical standards for public service providers must be upheld to avoid falling behind our international counterparts, particularly in terms of how widely the legislation applies Strengthening the reach and enforcement of these standards is essential to keep pace with global expectations If we fail to act, this trend will continue.
Concern is clearly shared by our Scottish counterparts but they have already taken progressive steps to modernise FOISA In a similar report to the Scottish Parliament in 2015, the Scottish Information
Commissioner advised that powers to extend FOISA had been “woefully underused” 119 In 2016, Ministers concluded that FOISA should be extended to contractors who run privately-managed prisons, providers of secure accommodation for children, grant-aided schools and independent special schools, and Scottish Health Innovations 120 A draft order to extend coverage of FOISA to registered social landlords has been confirmed 121
Our 2015 roadmap discussion document noted a growing global recognition of the need to extend access to information laws A Centre for Freedom of Information survey found that a majority of Information Commissioners believed that private bodies or non-government organisations carrying out public functions or receiving public funds should be subject to access to information law.
Across Europe, private entities are covered, and a smaller but steadily growing number of countries extend this coverage to private organizations that receive public funding, regardless of whether those entities perform public functions.
In 2017, we joined forces within the 10th ICIC to pass a resolution addressing the shift in public service delivery models The resolution highlights the challenge of scrutinising public expenditure and the performance of services delivered by outsourced contractors, and it emphasizes the impact on democratic values such as accountability, transparency, and the broader pursuit of the public interest.
Specifically, Commissioners from across the globe committed to improve access to information legislation regarding outsourced services and services delivered by non-public organisations, to promote global
119 Scottish Information Commissioner News release: Parliament warned that action is needed to protect FOI
19 January 2015 URL: http://www.itspublicknowledge.info/home/News/20150119.aspx
120 Consultation on further extension of coverage of the Freedom of Information (Scotland) Act 2002 to more organisations 12 June 2015 URL: https://www.gov.scot/Publications/2015/06/5112/0
121 Scottish Housing News Plan to Extend FOI legislation to housing associations from April 2019 7 December
2017 URL: https://www.scottishhousingnews.com/article/plan-to-extend-foi-legislation-to-housing- associations-from-april-2019
122 See note 11 P 14 initiatives that provide standards for open contracting and to share practice 123 This report is part of our contribution to that ongoing international effort
This graphic shows that several countries are already addressing how organizations other than public authorities deliver public services more directly within their access to information laws It also includes details from responses to our international survey, circulated by the ICIC Secretariat as part of the research for this report 124
On 22 September 2017, the Information Commissioner’s Office reported that the International Conference of Information Commissioners highlighted the need for greater transparency in contracted-out public services, stressing openness in outsourcing arrangements and the handling of data in outsourced public sector work.
What do other access to information laws cover?
These laws cover information held by…
Culture and leisure trusts, contractors who run privately managed prisons, providers of secure accommodation for children, grant-aided schools and independent special schools (in relation to designated public functions)
A service provider under contract with a FOI body in relation to work relating to the contract
Contractors engaged by a public authority in relation to that work and information held by unincorporated bodies established to assist or perform functions for a public sector agency or local authority
This includes any individual or entity performing a public service function, as well as any natural person, legal entity, or incorporated business association that enters into a financial or business relationship with a subsystem of the central budget.
Any individuals, legal entities or unions who receive and use public resources or perform acts of authority of the Federation, the States and
Strong access to information laws underpin transparency and accountability by rebalancing power in favor of citizens and ensuring the state is answerable to the public Together with other oversight mechanisms, these laws help achieve what people want: better public services They enable timely access to government data and decisions, fostering informed citizen engagement and more responsive governance Viewed this way, access to information is a foundational tool for transparent government and improved public service delivery.
The public sector continues to evolve to encompass a greater range of innovative and complex delivery models, including expansive outsourcing
It is increasingly urgent that the Government recognize the risks of not updating access to information laws to keep pace with rapid changes in public service delivery The current framework does not deliver the transparency and accountability required by modern public services, risking weakened oversight and diminished public trust.
There is a compelling case for designating contractors and a broader cohort of organisations that exercise public functions, so the public can access more information about how these functions are carried out This expansion would be in line with Parliament’s intentions and with the public’s expectations The powers under the Freedom of Information Act (FOIA) to extend the Act’s reach have hardly been used.
There is also too much uncertainty about contractual terms and the extent to which information held by contractors is held on behalf of public authorities
Public confidence in those delivering public services must be restored, particularly after the Carillion collapse and the Grenfell Tower fire The government should make clear to contractors and to citizens that transparency and accountability are integral to the deal The benefits of this approach are substantial, including improved data quality that enhances service delivery and greater equity for people seeking information about public services.
Public contracts and voluntary cooperation fall short on transparency and accountability for citizens Many contracts remain inaccessible to the public, undermining transparency from the start and leaving people unaware of where contracts are stored, how they are managed, and the quality of performance Contract terms have not improved sufficiently to safeguard openness and accountability In a sample of public sector contracts, there was no evidence that the parties had specified what information would be held on behalf of a public authority in response to information requests.