Local Public Data Panel - Freedom of Information, public services and open data

This statement from the Local Public Data Panel[1] is intended to inform the Government’s review of Freedom of Information (FOI) legislation. 

In this statement, we make two proposals:

• That the Government should consider amending the FOI Act to apply it to all publicly funded services, regardless of the organisation that provides them. 
• That data that the public has the right to obtain under FOI should be published as open data. 

These two proposals reflect the principle that public transparency should follow public money.  Implementing them would provide consistency in the application of this principle across all publicly funded services. 

We also offer our assistance in the development of further guidance on two specific issues:

(a) guidance for public authorities on building open data considerations into all public service contracts; and

(b) a new code of practice on the open release of datasets requested under FOI.

1. FOI should apply to publicly funded services delivered by non-public sector organisations

Publicly funded services are often delivered by private companies, registered charities, voluntary organisations and others outside of the public sector.  At present, when this happens, information relating to those services falls outside the FOI regime unless the bodies are, or are wholly owned by, bodies specifically listed in Schedule 1 to the FOI Act 2000.

The list of bodies to be covered by FOI under Schedule 1 has been updated through secondary legislation, most recently in September 2011.  The Protection of Freedoms Bill will extend the FOI Act to cover companies owned by two or more public authorities (the existing Act only covers companies owned by one public authority and not joint ventures).  

These changes are welcome, but they do not cover the wide range of non-public sector organisations that deliver public services.  Therefore, the public’s access to data and information depends on whether the service is being delivered internally, or by an external organisation.  As well as taking what should be publicly accessible information out of the FOI regime, this also creates an incentive for public bodies to outsource services to put them out of the reach of FOI legislation.

The Government should therefore consider how the FOI Act could be amended to encompass a wider definition of public authorities, to apply FOI to all publicly funded services regardless of what organisation delivers them.

In seeking a workable way of defining the bodies that should be covered, and the extent to which they should be covered, there may be useful lessons to draw from the debate about the application and interpretation by the courts of the concept of a ‘functional public authority’ under the Human Rights Act.  The concept is intended to be used to apply the provisions of the Act to public services delivered by organisations outside the public sector but not to those organisations’ other ‘private’ activities.[2]

To accompany the change we are proposing, and in the light of the developing and complex relationship between FOI and the emerging right to data, more detailed guidance may be required to enable public bodies to ensure that the public right to information is effectively built into procurement processes.  We will be happy to advise on and contribute to the development of guidance.

2. Data available to the public under FOI should be published as open data

If the public has the right to obtain information under the FOI Act, then the information should be published as open data without anyone having to specifically request it.  This would move us away from the unsatisfactory situation of people being allowed access to information on a one off basis, and only if they happen to ask the right question of the right organisation at the right time.

The Protection of Freedoms Bill will require authorities to publish datasets requested under FOI in a re-usable format, and to publish updates to those datasets.  This is a welcome step in the developing relationship between FOI and open data. 

However, the Bill includes broad and undefined caveats around the requirement to publish datasets that are requested under FOI.  For example, it provides that authorities are only required to publish datasets requested under FOI ‘unless the authority is satisfied that it is not appropriate for the dataset to be published’. 

The Bill provides for the Secretary of State to issue a code of practice on the release of datasets requested under FOI.  The code of practice will be crucial in determining the extent to which the provisions of the Bill are effective in opening up more public data.  In particular, the code will need to specify clearly what should be considered appropriate or inappropriate by authorities when deciding whether or not to release datasets and in what format.  Further guidance may also be required on licensing issues, beyond what already appears on the face of the Bill, to ensure that the Open Government Licence[3] is the default license for public data. 

The Panel would welcome the opportunity to contribute to the development of the code of practice on the open release of data requested under FOI, to help ensure that the code is effective in furthering the release of more local public data.

Local Public Data Panel

September 2011

[1] The Local Public Data Panel is an independent panel that advises Government on issues relating to the release and effective use of local public data.  For more information about the Panel, see data.gov.uk

[2] See reports from the Joint Committee on Human Rights: http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/77/77.pdf and http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/39.pdf ; Government response of 2009: http://www.justice.gov.uk/publications/docs/gov-response-jchr-report-public-authority.pdf

[3] http://www.nationalarchives.gov.uk/doc/open-government-licence/