ICO calls for action to tackle "transparency gap" caused by rise in outsourcing

Action is needed from the Government, public bodies and contractors to address a “ transparency gap” that has emerged as a result of the rise in outsourcing, the Information Commissioner’s Office has said.

In a discussion document, Transparency in outsourcing: a roadmap, the ICO set out four steps to greater transparency in outsourcing:

• Better contracts: “A fundamental problem in relation to FOIA requests related to outsourcing is deciding whether information is in the scope of a request. More precisely, the question is whether a contractor is holding information on behalf of a public authority.” The current level of uncertainty is “unacceptable”, the ICO said. One approach would be for a legislative change, to give a more specific steer than the current concept of “held on behalf of ”; another would be for public authorities and contractors “to better consider this issue at the outset of their relationship”.
• Transparency by design: “Our guidance is clear that waiting to address the FOIA question with a contractor until a request comes in is not a sound approach. We advocate earlier consideration of access to information, at the start of the contracting process.”
• Legislation: “The growing interest in transparency about outsourcing has led to calls to extend the scope of FOIA. This would be a decision for the government to make, with options to extend the Act to cover work done by contractors, or indeed to designate the contractor themselves as a public authority.” The ICO said it thought the definition of information held should be amended, so that information held by a contractor in connection with their delivery of an outsourced service is always considered to be held on behalf of the public authority.
• Standard contract terms: “The use of standard contract terms would provide a consistent approach to FOIA in all outsourcing contracts, without the need for any change to the law.” The ICO said it thought there was scope for improving transparency requirements in standard contract terms. “They could include a requirement for proactive publication of certain information, including the contract itself and performance against KPIs. They could also include provisions for specifying what information is in scope of a FOIA request.”

Contracting out accounts for around half of the £187bn that the public sector spends on goods and services each year, the report noted.

The ICO has also produced a document giving practical guidance for public authorities: Outsourcing and freedom of information – guidance document.

ICO Head of Policy Steve Wood said: 

"It isn’t a secret that the growth in outsourcing has led to a fall in transparency, as freedom of information laws haven’t always been able to follow the public pound. But this isn’t an insurmountable problem.

"We’re calling on public authorities and contractors to consider transparency from an early stage, before a contract is even signed. And we’re asking whether the government might need to step in to make sure the public can access the information they should be entitled to from big government-funded contractors."

According to a survey carried out on the ICO’s behalf, 75% of people said it was important that private companies acting on behalf of public authorities should be subject to the Freedom of Information Act.