Local Public Data Panel Submission to Justice Select Committee's Review of FOI
1. Executive summary
1.1 In this memorandum, we put forward three recommendations for consideration by the Committee:
- The Government should consider amending the FOI Act to apply it to all publicly funded services, regardless of status of the organisation that provides them.
- The extension of coverage should include a requirement that public authorities build freedom of information and open data into all contracts to deliver public services.
- Data that the public has the right to obtain under FOI should be published as open data.
1.2 These recommendations reflect the principle that public transparency should follow public money. Implementing them would remove current inconsistencies and give full effect to the Government’s stated commitment to a public right to data.
2.1 The Local Public Data Panel welcomes the Committee’s post-legislative review, and the publication at the outset of the Ministry of Justice’s memorandum to the Committee.
2.2 The Local Public Data Panel  is an independent panel of experts appointed by the Secretary of State for Communities and Local Government to advise the Department on transparency and open data policy and practice.
3. Freedom of Information requirements should apply to publicly funded services regardless of who delivers them
3.1 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.
3.2 When the management and delivery of public services is undertaken outside the traditional public sector, the default position is that data previously available under FOI is no longer available. As well as being wrong in principle, this also has the potential to undermine businesses using the data to build applications that help people to make smarter and more effective use of public services.
3.3 The list of bodies to be covered by FOI under Schedule 1 has been updated through secondary legislation and in some cases through primary legislation. However, change so far has proceeded in a piecemeal fashion, resulting in coverage that is patchy and incomplete. This means that it is unclear to the public why some organisations are accountable to them through Freedom of Information whilst others (such as Network Rail) are not.
3.4 The public’s access to data and information about public services largely depends on whether the service is being delivered directly by a ‘public sector’ organisation or by an external organisation. For example, bodies delivering public services funded by state-granted monopolies like Network Rail are not covered. 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.
3.5 The Government should therefore consider how the FOI Act could be amended to apply FOI to all publicly funded services regardless of what organisation delivers them. This principle is important given the extent to which public services are already commissioned and procured through the private and voluntary sector, but also because this practice is expanding, with public service reforms further diversifying the scope of delivery arrangements. Current, traditional approaches to public accountability must adapt to ensure transparency and to help the public to understand how their money is spent, what they can expect from such investment, and to have a voice in this.
3.6 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 .
3.7 Whilst there will be some resistance from private companies serving public organisations to protect commercial interests, we do not believe that this will add to costs. Guidance is needed to avoid misuse of blanket exceptions, and public bodies should be required to build FOI and open data into all contracts to deliver public services using standard terms as far as possible.
4 Public authorities should be required to build freedom of information and open data into all contracts to deliver public services
4.1 Some local authorities already build openness into their contracts. For example, the London Borough of Redbridge, which is represented on our Panel. But this practice is not widespread.
4.2 Direction is necessary to require public bodies to build the public’s right to information into contracts to deliver public services. Making this a requirement rather than an option would strengthen public authorities’ ability to negotiate clear and comprehensive openness clauses with contractors, and would ensure consistency of practice across the country.
4.3 Overall, increased transparency will lead to more efficient and effective services. However, advice would be useful to help public authorities effectively manage any immediate cost or commercial implications of including openness clauses in contracts.
4.4 The Open Government License, developed in central government but applicable across all public authorities and in use in local government, provides a useful model for model clauses to build openness into public service contracts.
4.5 The guidance produced by the Local Government Association, in collaboration with the Local Public Data Panel and other experts, on openness in local public service contracts also provides a useful reference point for this work .
5. Data available to the public under FOI should be published as open data
5.1 If the public has the right to obtain datasets under the FOI Act, then those datasets should be published as open data, so that it is not necessary to specifically request it. Attention here should be focused on datasets where there is strong demand or public interest/benefit, or where it is cost-effective or possible to do so at minimal cost (again see the example of the London Borough of Redbridge).
5.2 This would move us away from the unsatisfactory situation of people being allowed access to datasets on a one off basis, and only if they happen to ask the right question of the right organisation at the right time. There are also potential savings for organisations publishing datasets frequently requested under FOI so that they do not have to respond to duplicate requests.
5.3 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.
5.4 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 do so ‘unless the authority is satisfied that it is not appropriate for the dataset to be published’.
5.5 The Bill also only requires authorities to publish datasets that have been requested under FOI, whereas we would argue that if a dataset is potentially available on request under FOI then it should be proactively published. This would enable people to see more easily what data is available. It also has the potential to reduce the costs of FOI for authorities, because they would be publishing datasets by default rather than having to trawl their archives for data in response to requests.
5.6 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 the essential criteria for what should be considered appropriate or inappropriate by authorities when deciding whether or not to release datasets and in what format. This should be developed in consultation with the full range of stakeholders so that any guidance is effective, appropriate and practicable for local public service providers.
5.7 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 License  is the default license for public data. Further consideration will also need to be given to the relationship between Freedom of Information and the Public Sector Information Regulations.
5.6 We would be pleased to offer further assistance to the Committee during the inquiry.
 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
 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