Transparency Updates and the Revised s45 Code

May 13th, 2016

A few transparency-related updates for readers, which will have a potential impact on (a) the engagement of exemptions under FOIA and the EIR, and (b) the public interest balance. As the Government insists on more openness about certain types of information, including its own, so the withholding of similar information will be harder to justify. There is also now a confirmation that a revised Code of Practice under section 45 FOIA is on its way.The first development is a further consultation exercise from the Department for Communities and Local Government on strengthening the Local Government Transparency Code 2015. The proposals include publication of more information about land and property assets local authorities hold onto the Government’s electronic Property Information Management System; requiring existing procurement publication to be in particular forms; the costs of ‘in-house’ services contracts above £500k; greater detail about parking charges as well as statistics about the enforcement of parking restrictions; and mandating publication through a single landing page. The consultation closes on 8 July 2016 and can be found here.

The second development is a Cabinet Office announcement linked to the current anti-corruption summit, under which the UK Open Government National Action Plan 2016-18 has been published. Of particular relevance is the element of the Plan which announces that from October 2016 the UK will be the first G7 country to commit to the Open Contracting Data Standard (OCDS) for contracts administered by a central purchasing authority, the Crown Commercial Service. This means that the whole process of awarding public sector contracts – from the bidding right through to the building – will be visible to the public for the first time. This will have an obvious potential impact on arguments relying on section 43(1) in relation to central contracting.

The Plan also confirms that the Independent Commission on FOI’s recommendation that the long-overdue revision of the Government’s section 45 Code of Practice be carried out is indeed being taken up. The Plan says:

Further steps will be taken to ensure transparency on issues such as FOI performance and senior pay and benefits across the whole public sector. The public should not have to resort to making FOI requests to obtain it. We intend to issue guidance to public authorities to set a higher standard for the publication of senior level pay and benefits by summer 2016. We will also issue guidance in the revised Section 45 Code of Practice to set a standard that public authorities with 100 full time equivalent employees or more should publish statistics on their FOI performance, to better hold public authorities to account.

A revised Code of Practice will ensure the range of issues on which guidance can be offered to public authorities is sufficient and up to date. Public authorities should have sufficient guidance to properly manage information access requests in order to protect the right of access to information the FOI Act provides. We aim to consult on and issue a new Code of Practice by the end of 2016.

Keep the eyes peeled for the consultation, which is not expected before late summer.

Christopher Knight

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