The ICO’s new report Outsourcing Oversights calls for changes to the FOI and EIR laws to better cover private bodies doing public work. It recommends specifically that the Government should:
1. Designate contractors regarding the public functions they undertake where this would be in the public interest, whether because of the scale, duration or public importance of the contracts.
2. Designate a greater number of other organisations exercising functions of a public nature, and do so more frequently and efficiently. Designation orders under section 5 of FOIA would give the public the right to make requests directly to these organisations and require them to proactively disclose information in line with a publication scheme.
Legislative reform of FOIA and the EIR – primary legislation
3. Consider reforming the EIR to allow organisations exercising functions of a public nature, including contractors, to be designated to increase consistency across the two information access regimes.
4. Amend section 3 of FOIA and regulation 3 of the EIR (‘held on behalf of’ provisions) to give a clearer legislative steer about what information regarding a public sector contract is held for the purposes of the legislation.
5. Introduce a legal requirement to regularly report on the coverage of
the legislation. Government review of proactive disclosure provisions regarding
6. Conduct a comprehensive review of all proactive disclosure provisions regarding contracting, and which affect the public sector. This would include a review of the publication scheme provisions in FOIA, and relevant provisions in the EIR, and how they complement other procurement laws and government requirements. This should
consider how such provisions are monitored and enforced, and what resources are available