Outsourcing Accountability: Privatisation and Freedom of Information

Friday 22 April 2011

Since it was introduced in 2005, the Freedom of Information Act (FOIA) has helped expose a wide range of scandals. It has uncovered MPs exploiting their taxpayer-funded expenses system, child abuse in Northern Ireland as well as the scale of civilian deaths in the Afghan war. The Act, which is based upon the principle that the public has a “right to know” information contained in government records, has become an important means by which power can be held to account.

But freedom of information as we know it could be under serious threat. In towns and cities across the country, there are rapid, expansive changes taking place. As the government implements the biggest public spending cuts in a generation, many public services are struggling to survive. From Manchester to Devon, libraries, care homes, schools and even hospital wards are faced with a very real prospect of closure. What this means is that, almost inevitably, we are set to see control and ownership of public services being handed over to the private sector on an unprecedented scale.

The FOIA, in its current form, can only be used to gain information from public bodies “wholly funded” by public money, such as the police force or local councils. Private companies not owned by public money, even if they are providing key public services such as care provision, are not bound by the Act. Therefore, as more and more of our services become privatised, freedom of information is likely to diminish.

According to freedom of information campaigner, author and journalist Heather Brooke, this poses a serious problem for the future.

“We’re going to see increasing privatisation of what were public services, and there is a danger that because they’ll be privatised they won’t have the same accountability that they had when they were overseen by public bodies,” she says. “In principle I don’t have a problem with privatisation; my problem is when public money or policymaking or public decisions are outsourced, there’s no way for the public to hold that to account.”

The coalition government expects that as the public sector slowly disappears and the state shrinks, privately owned companies will step in to fill the void. Journalists and citizens will still be able to request information about specific private contracts if they have been paid for by a public body – such as when a council contracts a private company to provide a service – but they cannot make direct FOI requests to the company or ask for information relating to any other matters. The implications of this are potentially huge.

“It is a matter of concern where functions are being removed from public authorities to private contractors,” says Maurice Frankel, director of the long running UK Campaign for Freedom of Information. “A vast range of information is going to be lost from public access.”

Frankel predicts that if the coalition’s plans to privatise elements of the NHS go ahead, GPs will have a right to access only partial information about the performance of contracted private healthcare providers. “If you want to know how many cases of reinfection occurred in the hospital, that’s not going to be covered by the individual GP’s contract,” he says. “The solution is to make the contractors themselves public authorities under the [FOI] Act.“

Across the housing sector, similar changes have already taken place. Private companies are now responsible for building most of the UK’s “affordable homes” – a role that up until the Thatcher era was carried out predominantly by councils using public funds. Often councils will now contract private developers as part of regeneration projects. Consequently, there has been a direct impact on transparency and accountability.

Researching a story on a regeneration project in New Broughton, Salford for Big Issue in the North earlier this year, I encountered firsthand the impact of privatisation on freedom of information. After a significant statistic was quoted to me by a public relations (PR) firm employed by private developer Countryside Properties, I asked to see its origin. Following a lengthy exchange of emails, however, my request was refused. The survey was “confidential and not in the public domain,” I was told. The PR firm would allow me to see snippets of the survey, but not the full thing; they wanted to reveal the favourable statistics, but nothing else.

The government’s plans to create new ‘free schools’ – schools that can be started by businesses, parents, teachers or other groups – have also caused transparency concerns.

Jane Eades, treasurer of campaign group the Anti-Academies Alliance, was refused information about free schools after submitting an FOI request to the Department for Education last year.She believes part of the problem is that a charity called the New Schools Network (NSN) has been set up to help fund free schools. The NSN has received £500,000 from the government, and anyone wishing to set up a school can apply to it for funding. But as it is a charity, it is exempt from the FOIA.

“The Government have been very cunning in the way they have set up the free schools process,” Eades says. “Unless the group [the NSA] publicise what they are doing, there is no local consultation or information. In other words, the whole deal seems to be very secretive.”

Such instances could become commonplace if privatisation is to spread across the public sector. Yet prime minister David Cameron maintains that the coalition government aspires to become “one of the most transparent governments in the world”. In recent weeks, for instance, the government has revealed plans to somewhat strengthen and widen the powers of the FOIA. Under the changes proposed in the new Protection of Freedoms Bill, some organisations previously exempt from freedom of information requests would be included. Bodies performing “functions of a public nature” such as the Association of Chief Police Officers (ACPO) and the Advertising Standards Authority are among those who would be made to adhere to FOI legislation.

Freedom of information campaigners have welcomed these changes; however, although the Freedoms Bill widens the scope of the FOIA, it still fails to address the issue of privatisation. While on the one hand the government is strengthening the ability of citizens to gain information from public bodies, on the other, by privatising public services, they are reducing the amount of information that is freely available. Whether intentionally or not, the coalition is outsourcing accountability.

According to the Ministry of Justice (MoJ), the arm of government responsible for freedom of information policy, the FOIA will soon be reviewed to ensure it remains an effective means by which people hold the government to account. But the speed and scale of the government’s rapidly implemented privatisation agenda seems to have already caught the MoJ off-guard.

When questioned about the potentially regressive impact of privatisation on freedom of information, an MoJ spokesperson responded: “We have to strike a balance between our commitment to increasing transparency and that of reducing the regulatory burden on business. We do not consider it necessary to extend the Act to bodies that provide public services under contract at present.”

Meanwhile, the Information Commissioners Office – the independent authority set up to “uphold information rights in the public interest” – pointed to a statement made by Commissioner Christopher Graham in January.

“It would be perverse if by going for alternative provision of services – privatisation, contracting out, looking at new and imaginative alternative ways of delivering public services – we suddenly found that we are giving important public functions to authorities that are not within the FOI Act and they became less accountable," Graham said in an interview with the Guardian newspaper. “We've got to think through the implications; we can't be so starry-eyed that we can't see the downside. There is a potential for services to become less transparent and less accountable.”

For Brooke, who won a landmark High Court judgement in 2008 forcing the disclosure of MPs expenses, the only real solution is to expand the provisions of the FOIA further. “What I would like to see is a change in the Freedom of Information Act,” she says.

“A better situation would be if it was about the criteria, about how much funding does that organisation receive from the public or are they providing a public service. If they are doing one of those two things then they should fall under the purview of being a public body for the purposes of the FOIA. We’ve definitely got to see some kind of change to the law."

This article appeared originally in Issue No.871 of Big Issue in the North.


Ten things we've learned from Freedom of Information
  • Between November 2003 to October 2010, 84 Greater Manchester police officers were convicted of a crime
  • 327 Metropolitan police officers received a criminal conviction (37 for drink driving) and remained in service between January 2002 to January 2010
  • Ministers and MPs claimed thousands of pounds on taxis as part of £5.9m in expenses for travel
  • While serving as prime minister, Tony Blair spent almost £2,000 of taxpayers' money on cosmetics over a six year period
  • As at May 2010, 117 BBC staff were in receipt of a salary greater than £142,500 per annum
  • Metropolitan Police spent £3.25m between 2006 to 2009 on a “terrorist hotline” that encouraged people to report “suspicious activity” in their neighbourhoods
  • Some NHS dentists earn up to £250,000 a year in fees
  • Shortly after coming to power in 1979, the Thatcher government hatched a plan to search for the Loch Ness monster using dolphins fitted with high-tech cameras
  • Foreign diplomats with diplomatic immunity were accused of sexual assaults, child abuse, rapes murders while working in Britain between 1999 to 2004
  • There were calls for an inquiry into the conduct of three British military units in Afghanistan in 2010, after British soldiers killed or wounded civilians in a series of separate incidents

Tony Blair's Brainchild

The Freedom of Information Act (2000) was the brainchild of an energetic, fresh-faced and idealistic Sedgefield MP named Tony Blair. In 1996, speaking 13 months before he went on to become prime minister, a 42-year-old Blair stood before an audience in London and outlined what was then a radical vision.

“We want to end the obsessive and unnecessary secrecy which surrounds government activity and make government information available to the public unless there are good reasons not to do so,” he said. “It is not some isolated constitutional reform that we are proposing with a Freedom of Information Act. It is a change that is absolutely fundamental to how we see politics developing in this country over the next few years.”

More than 14 years later, though, Blair would express deep regret over his implementation of the Act, in what was an astonishing u-turn after a decade in government. “You idiot. You naive, foolish, irresponsible nincompoop,” he wrote in his memoir, A Journey. “There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.”