PLC Public Sector reports:
A recent statement from the Local Public Data Panel (LPDP) has raised some interesting issues in relation to the extension of the Freedom of Information Act 2000 (FOIA). Among other things the statement proposed that the remit of FOIA should be extended to include information on all publicly-funded services regardless of the organisation providing them, which could include private companies, charities and voluntary organisations.
This post considers the potential implications of this proposal and other proposals included in the statement.
What is the Local Public Data Panel?
The LPDP was formed as part of the government’s “Smarter Government project” intended to open up local data to the public.
The panel is chaired by Professor Nigel Shadbolt. Key aims of the LPDP are to:
- “Ensure understanding of the case for making local public data freely available for re-use.
- Promote innovative uses of local public data
- Sponsor the further development of a single place on line (‘data.gov.uk’) for all public sector data, while meeting the specific needs of the local government sector
- Encourage agreed standards for greater data and information sharing by local strategic partnerships.”
The LPDP’s statement
On 30 September 2011, the LPDP published a statement “intended to inform the government’s review of Freedom of Information (FOI) legislation”.
The statement centred around two main proposals that:
- The government should consider extending FOIA to cover all publicly funded services regardless of the nature of the organisation that provides them (a private company, charity, voluntary organisation, public sector body etc.)
- Any data that the public has a right to obtain under FOIA should be published as open data.
Extending FOIA
The LPDP proposal states that as publicly funded services are often delivered by those outside the public sector (and that are not listed in Schedule 1 to FOIA) it can mean that information owned by those services falls outside the scope of FOIA. And although the changes brought by secondary legislation and the Protection of Freedoms Bill 2011 are to be welcomed there are still organisations that deal with publicly funded services which will not be covered.
The LPDP states that, when deciding upon the scope of the bodies to be included, lessons can be taken from how “functional public authority” has been interpreted under the Human Rights Act 1998 (HRA 1998). Section 6(1) of the HRA 1998 makes it unlawful for a “public authority” to act in a way that is incompatible with a Convention right. For more information, see our note.
However, the distinction between public authorities and public functions and private bodies and private functions can be unclear, particularly in relation to hybrid bodies, where only some functions may be public (section 6(5), HRA). The position is made more difficult with public/private partnership arrangements and public bodies contracting out functions to the private sector, as demonstrated in the cases of R (Weaver) v London & Quadrant Housing Trust and Equality & Human Rights Commission [2009] EWCA Civ 587 and YL v Birmingham City Council and Ors [2007] UKHL 27.
It is therefore difficult to see how a “workable way of defining the bodies that should be covered” can be achieved when, in the cases mentioned, decisions on whether the bodies concerned were public authorities for the purposes of the HRA 1998 were eventually resolved by the Court of Appeal and the House of Lords after protracted litigation in the lower courts. It does not seem like a workable solution if every time it is unclear whether a body should be subject to FOIA then the courts will be required to decide, especially where the boundaries between public and private are becoming more blurred as services are shared and outsourced.
Another issue likely to arise with the LPDP’s proposal is the practical difficulties that it is likely to present to those who offer publicly funded services but are not currently covered by FOIA. Such organisations, if the LPDP’s proposal is accepted, will be required to differentiate between the public and private data that they hold and to consider whether such data should be dealt with under FOIA. This could potentially be time-consuming and costly, especially for charities and voluntary groups operating under tight budgets. As has previously been suggested, one solution may be that only certain private sector entities that deliver public services on a large scale be included within the scope of the FOIA, for example PFI companies. As special purpose vehicles will have been created to deliver such services, issues around what parts of an organisation’s information would and wouldn’t be covered should not be an issue (as all information would be relevant). This would remove the increased burden of compliance from smaller organisations such as those in the charity/voluntary sectors, however, it will often be the type of services delivered by these smaller organisations that will be the subject of FOIA requests. The intentions of the LPDP may therefore be thwarted by such an approach.
Publishing data available under FOIA as open data
The second proposal made by the LPDP is that where a member of the public has the right to obtain information under FOIA, then that information should be published as open data without requiring a request to made for it.
This is currently being considered as part of the debate on the Protection of Freedoms Bill 2011, which if passed in its current form will require public authorities to publish datasets requested under FOI in a re-usable format and to publish updates. However, this is subject to the authority being satisfied that it is “appropriate to do so” and the LPDP emphasises the importance of a code of practice being issued on what will and will not be considered to be appropriate. It should be noted that there is also some crossover here with the recently published code of recommended practice for local authorities on data transparency which also emphasizes the importance of using open standards.