Calls to extend the Freedom of Information Act (FOIA) and the Freedom of Information (Scotland) Act (FOISA) to private or voluntary bodies performing public functions are often premised on the argument that it is essential for taxpayers to be able to monitor how public money is spent.
Last year Labour MP Grahame Morris introduced a private member’s bill to extend FOI coverage to private health contractors, in part due to the fact that FOI responsibilities no longer follow the ‘public pound.’ In November I attended the Centre for Freedom of Information’s European Conference and listened to Professor Richard Kerley give a compelling talk in which he argued that a simple test should be applied when determining whether bodies should be covered under FOI legislation; again, he proposed that we need to ‘follow the public pound.’
In this post, I question whether the ‘public pound’ justification is really the best one to support the argument that private contractors and voluntary organisations performing public functions should be responsible under FOI. I do, of course, appreciate the need for financial transparency and know that this is one of the best tools that citizens have for holding government to account. Still, I can’t help thinking that this argument reinforces the ‘re-branding’ of citizens as taxpayers, as if we are nothing more than consumers of public services. On a more practical level, I think that following the money would likely result in increased transparency for a narrow range of public services and that many public functions would still remain left out under this formula.
Last month I blogged on the debate over whether universities should be subject to the FOI Act. The University of London’s Chris Cobb argued that in light of the reduced public funding universities now receive, we need to reconsider whether universities should be covered under FOI. He argued that since universities that receive less than 50 percent of income from public sources have already have discretion on whether to follow European procurement rules, the same should apply with regards to FOI responsibilities. This argument demonstrates that focusing too narrowly on how services are funded, rather than the nature of the function they serve, is perhaps not the best strategy when considering whether and how to extend FOI.
Today Scottish Information Commissioner Rosemary Agnew issued a special report that outlined how Section 5 could be better used to extend FOI responsibilities to the wide variety of organisations now responsible for public service delivery. Research commissioned by the SIC’s Office did find that the vast majority of the public do think it is important to be able to hold publicly-funded organisations to account, but that ‘the public interest in who should be covered by the FOI Act goes beyond considerations about the public purse.’ (para 40)
Instead, the report suggested that a rights-based approach, in which rights follow functions, would allow for greater protection of rights over time (paras 66-69). Likewise, a functional approach that focused on the nature of the function performed, as opposed to the institution providing the service, could also be used to preserve information access. Of course, determining what constitutes a ‘function of a public nature’ is not entirely straightforward, but Ministers would be able to exercise their judgment in doing so. The report also suggested a factor based approach (similar to the ‘totality of factors’ approach already in place in several US states) that would take into consideration a number of factors that could help to determine whether a function was public in nature. These include whether the functions are derived from or underpinned by statue, or whether the organisation is taking the place of a public authority by carrying out the function. The emphasis is on the function or the service, rather than the organisation performing it.
Whilst I agree with those who urge FOI responsibilities to follow the ‘public pound,’ I argue that the debate over whether and how to extend FOI needs to go far beyond this financial justification. The debate also needs to take into consideration the nature of the services and the role they play in society.