Transparency in outsourced contracts

The transparency agenda has been high on the coalition government’s list of priorities since it came to power four years ago. However, in those four years there has been significant outsourcing of public functions, not all without controversy. Recently, concerns have been voiced that it is difficult to find out what has been going on in these outsourced contracts — until it is too late.

Public functions that are carried on in-house are subject to the Freedom of Information Act (FOIA), so in theory (unless an exemption applies), anyone can find out information about how those functions are carried out. When those functions are outsourced to a private company, the position is less clear. The FOIA applies to information held by a public authority or ‘by another person on behalf of the authority’ (section 3 (2) (b)). But it is not always easy to tell when a contractor is holding information on behalf of a public authority (which would be subject to the FOIA) or on its own behalf (which would not be). A recent ICO blog gives an example of a local authority contracting out the management of a leisure centre to a private company, and whether information about the number of people using the gym was the company’s information, or the authority’s. If the former, then there would be no way that a member of the public could compare usage of the gym before and after the contracting-out.

The Information Commissioner’s Office (ICO) is concerned that ‘if significant information about the operation and delivery of public services is no longer covered [by the FOIA], then we are witnessing a gradual reduction of the scope of FOIA’, with the risk of corresponding reductions in transparency, efficiency and public trust…

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