Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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Speaking in Parliament on Tuesday, Justice Minister Simon Hughes announced the Government's intention to revise the statutory code of practice on freedom of information, "to make sure that private companies that carry out public functions have freedom of information requirements in their contracts". He also stated that the Government intends to "go further than that" without revealing the scope of further changes which may be introduced.
Companies providing services to the public sector will already be well aware of the transparency obligations placed upon public bodies by the Freedom of Information Act 2000 (FOIA). It is already common practice for public bodies to include terms into their service contracts which require service providers to co-operate in relation to freedom of information requests received. It seems that the Government's proposal will oblige public bodies to include such clauses in their contracts with private providers, but it is unclear for now what the scope of the mandatory clauses will be and whether a standard clause will be specified within the revised code.
It is likely that the revised code, subject to the existing FOIA exemptions, will ensure that contractors are obliged to reveal any information requested under FOIA which relates to the services they provide under their contracts with public bodies. The Government hopes to introduce the new code by the end of this year, which gives the private sector little time to prepare itself for this significant shift towards transparency. The Government is yet to reveal how the proposed requirement will be enforced, but it would seem logical for enforcement to fall within the ambit of the Information Commissioner's Office's existing FOIA enforcement powers.
The announcement was made during the Justice Minister's review of the progress that has been made in pursuit of the coalition Government's pledge to extend the scope of FOIA to provide greater transparency. He noted that FOIA has been extended to academies, the Association of Chief Police Officers, the Financial Ombudsman Service, the Universities and Colleges Admissions Service and numerous companies wholly owned by more than one public authority. The next target is Network Rail, and the Government are reported to be liaising with the Department for Transport in this regard. The Government has also committed to conduct two consultations on FOIA this year.
We will continue to monitor this and update our clients as
matters progress on the outcome of the changes.