Contractors may turn away from bidding from PFI work as proposed rule changes force them to release commercially sensitive information into the public domain. The Public Accounts Committee has recommended making contractors answerable to Freedom of Information (FoI) requests. The rationale behind this is to unmask those investors who are making excessive profits from selling on shares in PFI projects.
The private sector's objections are twofold. Firstly, that FoI requests will lead to an administrative burden with costs being added to the project, and secondly that the release of sensitive information will lead to a loss of competitive advantage for firms.
PFI contracts are often the subject of FoI requests. It can be unclear who (the private sector partner or the public authority) holds the information for the purposes of the legislation.
In Alan Dransfield v IC and Devon County Council (EA/2010/0152), the appellant made a request for an operations maintenance manual for a school which was built and maintained under a PFI contract. The contract required the private company to maintain and update the manual and give access, upon request, to the Council to demonstrate that it had complied with this obligation. The contract also contained a strict confidentiality clause preventing the parties from disclosing anything within the contract.
The Council stated that the private contractor was the owner of the manual and therefore it was not subject to the FoI. The Council was only entitled to access the manual for the purpose of determining whether the Contractor had complied with its obligations with respect to the compilation and maintenance of it. The Council had no right to deal with the manual in any other way.
The tribunal agreed with this. It ruled that the council did not hold the requested information and has not held it at any relevant date, and therefore it was not obliged to make it available under FoI. It noted though that after 2033 the position will change when the Council will have direct responsibility for the maintenance of the school and will have a full right of access to the manual. It will then hold the information within it for FoI purposes.
This decision clarifies the question of applicability of FoI to PFI arrangements. In any particular case though, there will have to be an examination of the nature of the requested information and what rights of access the public authority has to it.