[open-government] Fwd: [ORG-law] UK foia reach on private government subcontractors

Tue Nov 16 15:52:56 UTC 2010

Actually, this is a bit different. The South African law, uniquely,
applies even to the purely private functions of private bodies where the
information is needed for the exercise or protection  of a right.

That goes well beyond what we are discussing here, which is application of
the law to private bodies operating with public funds or otherwise
exercising public functions.

Toby

> Actually, there is already one law as far as I am concerned that does this
> in South Africa. Unsure about
> implementation. Hope it helps.
>  Promotion of Access to Information Act, 2000 (Act 2 of 2000)
> Part 3: Access to Records of Private Bodies
> Chapter 1: Right Of Access
> 50. Right of access to records of private bodies
>
>
>
>
> 1)        A requester <javascript:void(0);> must be given access to any
> record <javascript:void(0);> of a private body if--
>
> a)        that record is required for the exercise or protection of any
> rights;
>
> b)        that person <javascript:void(0);> complies with the procedural
> requirements in this Act <javascript:void(0);> relating to a request for
> access <javascript:void(0);> to that record; and
>
> c)         access to that record is not refused in terms of any ground for
> refusal contemplated in Chapter
> 4<http://www.acts.co.za/prom_of_access_to_info/62_interpretation.htm>of
> this Part.
>
>
>
> 2)        In addition to the requirements referred to in subsection (1),
> when a public body, referred to in paragraph (a) or (b)(i) of the
> definition
> of "public body <javascript:void(0);>" in section
> 1<http://www.acts.co.za/prom_of_access_to_info/1_definitions.htm>,
> requests access to a record of a private body <javascript:void(0);> for
> the
> exercise or protection of any rights, other than its rights, it must be
> acting in the public interest.
>
>
>
> 3)        A request contemplated in subsection (1) includes a request for
> access to a record containing personal information
> <javascript:void(0);>about the requester or the person on whose behalf
> the request is made.
>
>
> On 16 November 2010 15:18, <toby at law-democracy.org> wrote:
>
>>
>> I believe there were reforms on the way (probably by way of regulation
>> but
>> perhaps by amendments to the legislation) to substantially extend the
>> reach of the law to private bodies undertaking public functions, but I
>> am
>> not sure exactly where they are. Ditto for Scotland.
>>
>> Toby
>>
>> > -Response form our legal working group about UK:
>> >
>> > The FOI doesn't have a functional definition of a public authority.
>> > Public authorities are those defined as such in the act or subordinate
>> > legislation. There are many anomalies - for example a wholly owned
>> > subsidiary of a public authority is also subject to the act (by
>> > section 6) but a subsidiary of more than one public authority is not
>> > (so many local government consortia fall outside).
>> >
>> > Information held "on behalf of" a public body is also subject to the
>> > act, which does extend the reach somewhat, but that phrase has caused
>> > a lot of argument.
>> >
>> > There are some silly exceptions because of the way the act works, for
>> > example the House of Commons Commission claims not to be a public
>> > body:
>> >
>> >
>> http://www.whatdotheyknow.com/request/crowned_portcullis_2#incoming-80758
>> >
>> > The House of Commons itself ceases to exist when Parliament is
>> > dissolved for a general election, so this produced some peculiar (and
>> > frustrating) results at the last election.
>> >
>> > I have certainly been pushing for changes and extensions here.
>> > Something simple, such as any corporation with more public authority
>> > members than not ought to be a public authority (to get in all those
>> > local authority consortia etc). There are plenty more.
>> >
>> > The team at What Do They Know (team at whatdotheyknow.com) might be very
>> > helpful if you asked them nicely about it. I suspect its something My
>> > Society in general is very interested in.
>> >
>> > ---------------
>> >
>> > On 16 November 2010 11:53, Javier Ruiz <javier at openrightsgroup.org>
>> wrote:
>> >> Dear friends
>> >> is there anything like this in UK FOIA ?
>> >> The government has announced plans to amend FOIA towards "right to
>> >> data",
>> > it
>> >> may be an opportunity to put forward other amendments to extend who
>> is
>> >> covered by it.
>> >> best, Javier
>> >>
>> >> ---------- Forwarded message ----------
>> >> From: Katleen Janssen <Katleen.Janssen at law.kuleuven.be>
>> >> Date: 2010/11/15
>> >> Subject: Re: [open-government] Defining Open Government Data?
>> >> To: Tony Kennick <tony at technophobia.com>,
>> >> "open-government at lists.okfn.org"
>> >> <open-government at lists.okfn.org>
>> >>
>> >>
>> >> The ‘privatization of data’ through outsourcing can be a concern, but
>> > there
>> >> are some examples where the definition of ‘public authority’ subject
>> to
>> > the
>> >> FOI legislation should be broad enough to cover these types of
>> >> outsourcing
>> >> deals.
>> >>
>> >>
>> >>
>> >> For instance, the Belgian legislation includes bodies that have been
>> >> entrusted by a ‘real’ public body with a service performed in the
>> public
>> >> interest. The European directive on environmental information should
>> >> probably also be broad enough to cover these situations.
>> >>
>> >>
>> >>
>> >> Is the UK definition not broad enough to cover this?
>> >>
>> >>
>> >>
>> >> Best regards,
>> >>
>> >> katleen
>> >>
>> >>
>> >>
>> >>
>> >>
>> >> From: open-government-bounces at lists.okfn.org
>> >> [mailto:open-government-bounces at lists.okfn.org] On Behalf Of Tony
>> >> Kennick
>> >> Sent: maandag 15 november 2010 13:01
>> >> To: open-government at lists.okfn.org
>> >>
>> >> Subject: Re: [open-government] Defining Open Government Data?
>> >>
>> >>
>> >>
>> >>
>> >>
>> >> 2010/11/15 Javier Ruiz <javier at openrightsgroup.org>
>> >>
>> >> One of the key improvements to this area would be to extend the FoI
>> >> obligations to private companies doing public works.
>> >>
>> >>
>> >>
>> >> Any such extension would need careful drafting so it couldn't be used
>> by
>> >> competitors to dig out data from parts of any such company.
>> >>
>> >>
>> >>
>> >>  The amount of "public data" could almost disappear in cases such as
>> > Suffolk
>> >> council in UK, which plan to outsource every single
>> >> service http://www.bbc.co.uk/news/uk-11398678. Even the remaining
>> info
>> >> on
>> >> contracting would likely be denied on commercial confidentiality
>> >> grounds.
>> >>
>> >>
>> >>
>> >> The governments plans for data to be opened up so the public can
>> >> directly
>> >> assess the performance of local authorities only makes sense if it
>> >> doesn't
>> >> matter whether the council provides services directly or by
>> contracting
>> >> out. Whole swathes of data publishing will need to be set out in
>> >> contracts
>> >> as a required as part of the service delivery.
>> >>
>> >>
>> >>
>> >> --
>> >>
>> >> Tony Kennick
>> >>
>> >> Technophobia Limited.
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>> >
>> >
>> >
>> > --
>> > Francis Davey
>> >
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>> ___________________________________
>> Toby Mendel
>>
>> Centre for Law and Democracy
>> toby at law-democracy.org
>> Tel:  +1 902 431-3688
>> Fax: +1 902 431-3689
>> www.law-democracy.org
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>
>
> --
> Fabrizio Scrollini
>

___________________________________
Toby Mendel

Centre for Law and Democracy
toby at law-democracy.org
Tel:  +1 902 431-3688
Fax: +1 902 431-3689
www.law-democracy.org