FOI should be extended to contractors, says watchdog

Contractors should be forced to submit to requests for information about the public contracts they are working on under the Freedom of Information Act, a watchdog has concluded.

A report by the Information Commissioner Elizabeth Denham to Parliament said that in the wake of Carillion’s collapse and the Grenfell Tower disaster, private companies performing public services should be more open and transparent.

The Information Commissioner’s office found that only 23% of the public thought information about contractors’ activities on public work was accessible. The government spends around £284bn a year – nearly one third of its total expenditure – with external suppliers.

Denham said the current law was “not fit for purpose” and highlighted the example of Wye Valley NHS Trust, where fire safety surveys produced by Carillion were not subject to the Freedom of Information Act because they were not deemed to be “held” by the Trust.

She added: “After the Grenfell Tower tragedy in 2017, I also highlighted my concerns about access to information about fire safety and the fact that housing associations are not always covered by information access law.”

Denham’s report advocated the greater use of existing powers under section 5 of the Freedom of Information Act to designate contractors regarding the public functions they undertake where this would be in the public interest. Designation orders under section 5 of the Act would give the public the right to make freedom of information requests directly to contractors and require them to proactively disclose information.

The report also recommended that government should consider reforming the Environmental Information Regulations (EIR) to allow organisations exercising functions of a public nature, including contractors, to be designated to increase consistency across the two information regimes.

And it called on the government to undertake a comprehensive review of all proactive disclosure provisions regarding contracting and which affect the public sector, including a review of the publication scheme in both the Freedom of Information Act and the EIR, and how the complement other procurement laws and government requirements.

Denham said: “In the modern age, public services are delivered in many ways by many organisations. Yet not all of these organisations are subject to access to information laws. Maintaining accountable and transparent services is a challenge because the current regime does not always extend beyond public authorities and, when it does, it is complicated. The laws are no longer fit for purpose.

“When I was appointed Commissioner in 2016, I raised the prospect of extending FOIA to contractors delivering public services.2 Following the collapse of Carillion last year, I submitted evidence to the Public Administration and Constitutional Affairs Committee (PACAC) and was clear that FOIA should be extended.

“I want the evidence-based case made in this report to promote an urgent and constructive dialogue that will result in the strengthening of our access to information laws.”