The following is a chapter from the third “International Survey of Information Commissioners,” conducted by the Centre for Freedom of Information, University of Dundee, Scotland. Responses were provided by 53 commissioners or ombudsman in 33 countries. (See FreedomInfo.org report.)

In the last survey we noted that “increasingly a number of public functions and services, such as in health, education, transport, household waste disposal, social housing, are being delivered by private companies or non-­? governmental charities and trusts set up for that purpose. These bodies are often in receipt of significant amounts of public funds to deliver these services.” We asked Commissioners about the extent to which access to information laws in their area of jurisdiction apply to private bodies carrying out public functions. Over half of the Commissioners reported that, to some degree, access to information laws do apply to bodies which are not public authorities

However the reported scope of coverage differed substantially. In some countries the law applies to a small number of companies which traditionally have been established by governments or enjoy quasi-­?monopolies. These are often in transport, energy, communication and health sectors.

Elsewhere however the law potentially applies to a wider range bodies which meet certain criteria as set out in the statute. Broadly, it may be said, the basis on which the access to information law applies depends upon whether the body delivers public functions or is in receipt of significant public funds (or a combination of both of these.) These could go beyond quasi – governmental bodies or commercial contractors providing public services, to include NGOs. An example given was the Distrito Federal in Mexico, where the access to information law applies to “individuals or entities that receive public funds, for example, trade unions, non-­? governmental organizations (NGOs), civil society organizations (CSOs), foundations, etc. receiving public funds, which must account for their use.”

It appeared that in countries with more recent laws, such as Brazil, Estonia, Macedonia the legislators anticipated changes in the way public services are being delivered, and so drafted statutes intended to be future –proof against such changes. Instead of applying only to specific types of public bodies the scope of the law extends to whatever institutions deliver public services or in which public funds were spent.

Should the right to information be extended?

In this 2014 survey we approached the issue from another perspective and asked Commissioners opinion as to whether their are any private or non-­? governmental organisations (NGOs) carrying out public functions, or receiving public funds, which they think should be made subject to the access to information law in their country. In response 63% said there were such bodies. (Table 5.1)

Table 5.1 Are there private bodies/NGOs carrying out public functions or receiving public funds, some of which should be made subject to the access to information law?

In support of their opinion some argued that the law should generally apply where it involved the delivery of public functions or expenditure of public funds. Ireland proposed that “Bodies to which public functions are outsourced (such as bin collections, operation of swimming pools/leisure centres, etc.) and charities” should be required to provide information. The Cayman Islands took the sought to follow the money by arguing “ Any private bodies that receive public funds should be covered by the FOI Law, at least to the extent of their coverage (e.g. if the funds are for a particular project, the project information should be covered). This concerns for instance schools, churches and civil society groups.”

In New Zealand and Australia, it was noted contracting out public services does not necessarily preclude access to information regarding that service. “The Australian FOI Act requires an agency that is entering into a contract for the provision of public services on behalf of government to require in the contract that the contractor will provide relevant documents to the government agency if an FOI request is received by the agency.” A similar provision exists in New Zealand, where information held by independent contractors, and unincorporated bodies set up by Ministers or agencies to assist, advise or perform functions connected with the Minister or agency is deemed to be held by the Minister or agency.

However the New South Wales Commissioner takes the view that even though NGO’s are subject to information access laws through contractual arrangements when conducting work for a government entity, formalising this arrangement in legislation may assist in promoting access.

Some of the Commissioners gave examples of the specific organisations or types of bodies in their countries to which access to information should apply.

– Canada: NAVCAN (Canada’s Air Navigation Service Provider), Canada Health Infoway (an independent not-­?for-­?profit corporation created by Canada’s First Ministers in 2001, and funded by the Government of Canada, which collaborates with the provinces and territories to facilitate and invest in a network of electronic health record systems across Canada)

– British Columbia: Spin-­?off companies owned by public post-­?secondary institutions.

– Nova Scotia: Society for the Prevention of Cruelty to Animals, Nova  Scotia  Power,  Career  Colleges

– Berlin: Liegenschaftsfonds Berlin, (a mainly publicly owned enterprise which is in charge of administration and sale of public buildings)

– Indonesia: television companies allocated a frequency to broadcast by the government to broadcast

– Azerbaijan: Press Council, Municipalities

– Western Australia: Private sector operators of public health facilities

– New Zealand: partnership schools,

– United Kingdom: Contractors providing refuse collection and waste management functions, etc. Those responsible for transport infrastructure (Network Rail) Housing associations (social landlords).

Commissioners have made representations to government regarding the need to extend the scope of the right to information-­? often in circumstances where existing or previous rights have been lost.

The New Zealand Ombudsmen hasin the past that some state-­?owned companies that were partially privatised should remain subject to the official information legislation. In so doing they said, “In our view the proprietary rights of the public in the MOM [mixed-­?ownership model ] companies, coupled with the impact their activities have on the lives of individual members of the public, suggest that the current measure of accountability should remain, and not be limited to such rights as are accorded to ordinary shareholders in the private sector.”

The Scottish Information Commissioner has also in the past argued, ( with some limited success), against the public’s loss of freedom of information rights when publicly –owned facilities are transferred to charities or contracted-­?out to commercial contractors. She is currently preparing to lay a special report before the Scottish Parliament on the issue of designation.

Finally, in Chile the Commissioners have forced the issue of whether the law should apply or not. There are some private bodies called “Corporaciones Municipales” which receive a substantial amount of public funds from the local government to carry out specific public functions related to education, sports and culture. The Commissioners report that “Although these organizations are not subject to the law, we have processed requests anyway and the Court has supported our decisions.”

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Tags: commissioners/ombudsmen, public-private bodies

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