Do you work with public authorities? Find out if you will be affected by the new FOI extension bill

What is the purpose of the Freedom of Information Act?

The Freedom of Information Act 2000 is an Act of Parliament that creates a public "right of access" to information held by public authorities. The Government wished to create an open access policy whereby taxpayers can access relevant information. This open access is believed to help make public authorities accountable for their decisions and actions. The idea was first introduced in 1997 but did not come into full effect until 1 January 2005.

Why is Parliament discussing amendments to this Act?

The Freedom of Information (extension) Bill seeks to expand the perimeters of the current legislation so that the Act will directly catch bodies working with or on behalf of public authorities. This comes after consideration of how various bodies, who process information relevant to the public, can prevent public access to certain private information. As it currently stands, the Act defines public authorities as ‘any government department other than (a) the Competition and Markets Authority and (b) the Office for Standards in Education, Children’s Services and Skills’. This definition will, therefore, be expanded to include the following bodies;

• Housing associations
• Local safeguarding children boards
• Electoral registration officers
• Returning officers for parliamentary elections
• Housing Ombudsman

The extension will also apply to contractors working with these public authorities.

What will change for you?

• Contractors, who work with public authorities ‘for the provision of services to or on behalf of the public authority’, can currently keep relevant business information private by not explicitly listing their work as being for the public benefit. Contractors are not a public authority, but if the extension passes, all information held by the contractor, relating to the performance of the contract (between a public authority and a contractor/sub-contractor), shall be deemed to be held on behalf of the public authority and so disclosable by the contractor.
• The bill also proposes that social housing providers be considered a public authority and treated in the same way as public authorities, for the purposes of this Act. If you are working with housing associations, all information you hold in connection with those contracts will also be deemed to be held on behalf of the housing association and so disclosable by you.
• Under the proposed changes, the Commissioner will be given powers of entry and inspection over contractors. This means that it would be possible for freedom of information requests to be made directly to the Contractors in connection with their contracts with both public authorities and housing associations.

How can you still protect your sensitive information?

Though there will be some big changes to this legislation if the bill is passed, that is not to say that all information the bodies mentioned above can currently withhold, will become public. Only ‘information about the provision of public services under contract’ will be caught by the obligation to disclose. There will remain exemptions, such as section 43(2) that allows public authorities to withhold sensitive information from the public, where disclosure of information would be potentially detrimental to the businesses well-being. It has always been the case that authorities and boards can refuse to disclose information to the public if the ‘information were to constitute a trade secret or disclosure of information would be likely to prejudice commercial interest’. Protection for commercially sensitive information will still be available, albeit more stringently applied.

So, at what stage is the bill currently?

A date for the second reading debate of the bill within the House of Commons is due 22 March 2019. It is not known when the bill will come into force.

For more information

If you have any questions about the Freedom of Information (extension) Bill and how it may impact your information, please contact Emily Aldridge or Georgia Bradley - georgia.bradley@anthonycollins.com.