Elizabeth Denham's speech at a Parliamentary Internet, Communication and Technology Forum event held in partnership with the ICO and the APPG for Data Analytics.
Original script may differ from delivered version
Thank you to PICTfor for arranging this evening’s event and to Daniel Zeichner for hosting it. Thank you to the panel members for taking part. And thank you to everyone here in the room.
Your presence here today means that access to information is important to you. You want to contribute to the discussion, challenge the issues and continue the debate.
Freedom of information law was passed by Parliament with a very clear intention – to shine a light on public authorities, and follow the path of the public pound. The law gives individuals the chance to find out what their taxes are being spent on, why and how.
But that intention is no longer being met. I hope the discussions we have tonight will highlight a significant gap in transparency and begin to address the solutions.
Many of you will already be familiar with my office and our work on data protection. For the last two years my office has had to be laser focussed on a massive modernisation of the law – the GDPR.
But I am not the UK’s data protection commissioner, I am the UK’s Information Commissioner.
Data protection and freedom of information are two sides of the same coin. At their core, they are both about transparency and accountability.
They empower individuals to probe, challenge, and access decisions that impact on them and their lives. Both laws are key tools for democracy and citizen engagement.
Part of my job is to make sure that the legislation my office regulates fulfils its objectives and remains relevant. When it does not, I will speak out and seek reform.
When the Freedom of Information Act was passed in 2000, the UK led the way in terms of international standards of openness. Parliament had designed a law that was not only relevant to its own time, but acknowledged the future challenges of public service delivery.
But FOI, and its subsequent sister law the Environmental Information Regulations, no longer achieve what they were designed to do.
That’s because the world has changed. And the law has not kept up.
Modern public services are delivered in many ways by many organisations. Much of our social housing stock is owned by housing associations, many safeguarding services for children are run by charities, and increasingly leisure centres are run by private companies. These organisations use public funds, and provide public services, but they are not public authorities.
And that means they are not always subject to the scrutiny provided by FOI.
And it matters. Because these services affect people and impact on their lives.
This issue goes to the heart of the success of the Government’s public services reform agenda. The Government wants to give people increased choice about how public services are delivered at a local level. But how can people exercise greater control and choice if they are not able to access information about how these services are delivered? People must have equal access to information regardless of the provider.
It shouldn’t matter whether a house is owned by the council or a housing association. You should have the right to access information about where you live.
It shouldn’t matter if the care home looking after your elderly parents is run by the council or a contracted provider. In both cases you should have the right to access information about how that facility is run.
Proactive disclosure and open data are important – but they can only go so far.
There is a significant gap in the public’s right to know.
My office and others have been calling for an extension of access to information laws for years. In 2015 the ICO produced a discussion document outlining measures to address this transparency gap in outsourcing. But progress has been too slow.
That’s why I have exercised my power to lay a formal report before Parliament.
The report is called Outsourcing Oversight? The case for reforming access to information law.
I am calling for urgent action from the government to extend FOI by designating contractors delivering public functions – like probation services provided on behalf of the MOJ – AND by designating other bodies providing services of a public nature – like housing associations and returning officers.
To be clear, I am not calling for wholesale extension of FOI to ALL contractors, ALL charities, or to ALL aspects of a private company’s business.
So, you might ask, why now? Two high profile incidents sharpened my resolve.
The tragedy at Grenfell Tower highlighted concerns over access to fire safety information. But records held by the Tenant Management Organisation are beyond the reach of FOI. We know that because we managed the appeals – and my hands were tied.
The true scale of the problem was highlighted a year ago following the collapse of Carillion.
The company was responsible for no fewer than 420 public sector contracts, many of which may not have been subject to public scrutiny even though they were funded by tax payers.
I am aware of the demands on parliament’s time this year – history is being made across the road as we speak. But this is an issue that cuts to the heart of the right to know. We all deserve the right to question and challenge when it comes to our public services. I’m looking around the room at the law-makers. You clearly intended access to information law to evolve – because there is already provision to bring outsourced contractors into scope. But it has never been used.
And you clearly have an interest in securing the highest standards of information rights in the UK.
Yet we have fallen behind international standards of transparency. Newer laws in Brazil, Estonia, Macedonia extend access rights to cover private bodies providing public services or using public funds. New Zealand, South Africa, Ireland and Hungary have broader coverage. Closer to home, the Scottish law provides greater coverage than our own.
I believe things must change. For the sake of your constituents, and their trust in public services delivered in their name.
I look forward to our panel discussion and turn the microphone over to my colleague Jo Pedder, to provide more detail about our report’s recommendations.