The Firm recently learned that the culture of secrecy operated by public bodies routinely leads to the destruction of documents both sensitive and mundane, to avoid exposure to the public who own them. Paul Minto of HBJ Gateley Wareing examines how Freedom of Information may be extended into the private arena.

The Scottish Government discussion paper “Coverage of the Freedom for Information (Scotland) Act 2002” considers widening the FOI regime to bodies involved in the delivery of public services. The FOI regime has been in operation for almost four years but its presence is still quite unknown in certain sectors of Scottish life, so much so that the Scottish Information Commissioner (SIC) has commissioned research into how the freedom of information can be brought to the wider public attention.

This consultation, which closed on 12 January, arrived at an interesting time when economic conditions have meant the UK Government committing to bring forward public spending to boost the economy. Consequently more businesses are following the public pound.

Who could have predicted that at the end of 2008 several High Street banks would be owned by the Treasury?  The consequences of becoming wholly owned by government would inevitably lead to thoughts that banks should be caught by the FOI regime and should be preparing their own publication schemes.  The UK Government however took measures to protect Northern Rock and Bradford & Bingley by statutory instruments earlier in 2008 which excluded them from the FOI regime.  RBS is not (yet) wholly owned by the UK Government so is not likely to qualify under FOI as the rules currently stand.

It remains to be seen whether the other characteristics of a public authority such as pubic procurement are attached to the banks. An MSP recently attracted attention when he wrote to the Treasury enquiring as to whether Treasury ownership of the banks would lead to improved terms for PFI contracts between public bodies and those banks in which the UK Government now owns shares. The Scottish Government launched Scottish Futures Trust as an alternative to PFI, citing the legacy of PFI repayments as an unacceptable burden, so there may be further attention given to this new public ownership dimension.

Kevin Dunion, Scottish Information Commissioner speaking in April 2008, expressed his concern about the public having lost the right to access information as a result of changes in how public services are now delivered.

In the commercial world however that shift may be a little more troublesome. Information is a valuable commercial asset, and sharing that may not be welcome, but the consultation recognises that innovative ways of delivering public services is taking the service providers outwith the existing scope of FOI. Could there be restructuring of companies to limit exposure to FOI? So for example the part of a company which provides public services and consequently becomes a public authority could be incorporated into a separate subsidiary company.

Companies who tender for large projects with public authorities  have become familiar with the process of identifying commercially sensitive and confidential information which they do not wish to be passed on to a third party following an FOI request and these categories of information are usually identified in their bids. That may have been those companies’ only exposure to the FOI regime.  However if, following the consultation,  those contractors are named as public  authorities they will be expected to produce a publication scheme and routinely publish information.

Most private companies have always understood that the price you pay for following the public pound is greater transparency, public consultation exercises and the occasional shifting specification. Where a council is the leading partner there are often issues around publication of minutes and reports and occasional political posturing. Now there is the prospect of producing publication schemes and dealing with FOI requests to throw in the mix.

The Climate Change Act 2008  received Royal Assent on 28 November 2008 and has put environmental responsibilities firmly onto the political agenda.  The UK is the first country to commit to mandatory targets reducing the emissions of greenhouse gases and this Act will bring environmental compliance to many public and private organisations for the first time. 

 One of the first measures likely to be introduced is the Carbon Reduction Commitment, to reduce carbon emissions deriving from energy consumption through a carbon trading scheme. One of the principal levers is performance league tables, which are required to show organisations’ achievements relative to the others in the scheme.  This may not be threatening for public authorities who are used to public scrutiny, however it may be less palatable for private companies. Having their performance aired in public, combined with the increasing weight placed on corporate social responsibility by shareholders may be a powerful incentive. 

 The Scottish Climate Change Bill requires public bodies to report on climate change duties, so there will be keen interest in what these new climate change duties are and the extent to which the data generated can become public knowledge. 

 Public authorities have for some time used environmental criteria in their tendering exercises which could now include carbon reduction programmes in the performance of contracts. Given that the relative performance of companies involved in the CRC will be in the public domain, is there the possibility of that performance having an impact on award criteria for public tenders? It appears that the demand for environmental information is set to grow with the global efforts to reduce climate change and there may yet be more companies taken into public ownership. With increasing public expenditure and more public authorities there is likely to be greater interaction with FOI.