The Freedom of Information Act 2000 (FOIA) and the Freedom of Information (Scotland) Act 2002 (FOISA) give individuals and organisations the right to request and receive information from any public authority.  Similar to a previous exercise undertaken in Scotland, the UK government is now consulting on designating additional organisations as public authorities for the purpose of the FOIA.

The FOIA currently applies to a list of public authorities, including Local Authorities, NHS health boards, Government departments and companies that are wholly owned by any public authority or by the Crown.  However, an order can be made to bring other bodies within the scope of the Act.

Such an order, under Section 5 FOIA, can only be used to catch bodies not otherwise liable to be subject to the Act.  Aimed at increasing scrutiny of bodies which carry out functions of a public nature (and receive taxpayers money to do so), an order can affect those who provide services under contract, which are a function of a public authority.  This process could be used to ensure consistency in the way in which information about public services may be accessed.  An example given in the consultation paper is prisons, where those run by HM Prison Service are covered by the Act but prisons operated by private contractors are not.
 
The current Consultation, issued by the Ministry of Justice, is split into sections which consider the merits of extending the Act, possible criteria for including additional organisations, and how these extensions might be implemented.

Initially, five possible options are considered as a way forward: doing nothing, self regulation of the relevant organisations, use of information access obligations in public sector contracts, introducing section 5 orders to bring a specified set of organisations within the Act but with no expectation on the Government to introduce further section 5 orders, or introducing a series of section 5 orders to progressively widen coverage of the Act.

Sections two and three look at possible criteria for deciding whether an organisation should be covered by the Act.  This could be because it exercises "functions of a public nature", or because it provides services under a contract with a public authority, where those services are a function of that authority and not merely services that assist the authority in its day to day activities.  For  example, contracting with a private organisation to run children's homes would be covered, but a contract simply to supply stationery would not.

Part 4 of the Consultation discusses how the requirement to specify which functions or services are to be covered by the Act might be implemented in practice.  The Act will not apply to information held by a designated organisation in relation to other areas of its business and areas of overlap may be tricky.

The results will be interesting, particularly as respondents are invited to nominate organisations to which an extended Act may apply.  In any event, the Government has advised that following this consultation, they will consult directly with the relevant bodies before any organisations are actually designated.  Consideration will also have to be given to cost and time implications for designated bodies and to the possible detrimental effect of businesses and voluntary organisations leaving certain markets to avoid onerous obligations.

The Consultation is due to close on 1 February 2008 and can be accessed via the Ministry of Justice's website http://www.justice.gov.uk/publications/cp2707.htm. For further information on the Scottish consultation, see June 2006 edition of CA.

Alison White is a partner specialising in information management law with law firm Shepherd and Wedderburn
0131-473 5313

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