3.1 Greater use of existing powers under section 5 of FOIA -secondary legislation
3.1.1 Designate contractors regarding the public functions they undertake
The evidence in this report provides a strong case for the order making powers in section 5 of FOIA to be used to bring certain contractors directly under FOIA. This would enable members of the public to make requests directly to contractors regarding the public functions they undertake. The contractors would also have to comply with proactive disclosure requirements in FOIA.
How would designating contractors work in practice?
Contractors can be designated under FOIA if they are providing a service that is a function of a public authority. There is no single definition of
‘public function’ for the purposes of FOIA. Many of the relevant factors are similar to those that would be considered when deciding whether any organisation is exercising functions of a public nature (see annex 3).
Public authorities enter into a wide range of contracts but not all of them are about providing a service that is a function of a public authority. It is also important to note that sections 7(5) and 7(6) of FOIA require that section 5 orders must specify public functions are covered. Information that falls outside the specified functions or services will not be covered.
The MOJ said:
“…there is a need to distinguish between services that the authority provides or is expected to provide as part of its functions (eg child
protection), and those services that it commissions to enable or assist it to carry out its day to day activities (eg IT equipment).”127
It also said that the appropriateness of coverage should be considered:
“Considerations that might be suitable to be taken into account under this heading include whether the organisation concerned received public
funding and whether the benefits of public access to the information held appear to outweigh any negative impacts, for example in terms of
additional burdens on resources.” 128 Should there be a threshold?
The Commissioner’s proposal of designating key ‘public interest’
contractors recognises that it would not be feasible nor proportionate to designate all contractors delivering public services under the legislation.
However, there is no single solution to identifying which contractors it may be appropriate to designate.
In an MOJ consultation, respondents were asked about the factors that should be taken into account when considering the appropriateness of designation orders. It reported that:
“…respondents gave particular emphasis to the amount of public funding and coverage of comparable organisations. Many considered that
organisations in receipt of considerable public funding should be made formally accountable for it and that FOI should be standardised across sectors to enable greater clarity for the public wanting to gain access to information from organisations”.129
Rather than trying to impose a static threshold, we suggest it would be helpful to consider the amount of public funding an organisation receives as a guide to identifying major contractors. This guide should be applied
127 Ministry of Justice. Freedom of Information Act 2000: Designation of additional public authorities.
Consultation Paper CP 27/07. 25 October 2007. P. 18 URL:
http://ccrinepal.org/files/documents/legislations/13.pdf
128 As above p. 15
129 Ministry of Justice. Freedom of Information Act 2000: Designation of additional public authorities. Response to consultation. 16 July 2009. P. 23 URL:
http://webarchive.nationalarchives.gov.uk/20091009074807/http://www.justice.gov.uk/consultations/docs/c onsultation-response-_section5.pdf
with flexibility. It should not act as a strict barrier to contractors being designated if there is a strong alternative public interest in doing so.
The ICO procured independent research to inform the threshold question.
A full copy of the results is available in annex 1. We sought to analyse the potential impact of three thresholds; contract value, duration and
transaction value and considered the possibility of them working together.
We sought to capture as much of the net spend with suppliers as possible without unduly burdening small-to-medium enterprises directly. We
considered that one option could be to set a robust threshold (whether based on contract value, duration or transaction value) that captures a high proportion of spending and exempt small and/or medium enterprises as defined by legislation.
There were some significant limitations to the data we used to conduct the research. This is largely because the data that is publicly available lacks sufficient detail or accuracy. Therefore we have not sought to make a prescriptive recommendation about a threshold at this stage.
Nonetheless, we have shared the outcome of this research in annex 1. We believe it may provide a useful working framework for the Government to consider this issue more thoroughly.
The IfG’s recent report on Government procurement says up to a fifth of procurement spending goes on ‘strategic suppliers’.130 The IfG note that there are currently 28 of these suppliers – providing services such as facilities management, consultancy and audit, engineering, IT and social care. Carillion was a strategic supplier until it went into liquidation in January 2018. Designation of strategic suppliers of public services should also be a key consideration.
The quality of the published data we were able to access for our research illustrates strikingly the difficulties that the public face in accessing
information about outsourced public services. It shows clearly the
drawbacks of the failure to make good contracting data available to the public for this kind of analysis.
130 As note 6. P. 15