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

Tue Nov 16 16:29:30 UTC 2010

It is not just a question of degree but a difference in the theoretical
foundations for openness. South Africa has said that private bodies must
be open per se (in some cases) because of the power they wield over the
exercise of rights. Everyone else requires a link to either public
ownership, function or funding, based on theory about the need for public
openness (rather than power over our rights).

Toby

> Yes, I know it is a radical example and also a very unique one. I disagree
> that it is a different matter tough, South Africa just defined the
> extension
> broadly, regardless the fact that the private bodies hold or not public
> information. I think it falls in the scope of this discussion, it is just
> more radical though. (and I am unsure about the implementation)
>
> Best,
> F.
>
>
> , but I am not sure if it is a different matter. A
>
> On 16 November 2010 15:52, <toby at law-democracy.org> wrote:
>
>>
>> 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.
>> >> >>
>> >> >> The Workstation
>> >> >>
>> >> >> 15 Paternoster Row
>> >> >>
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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
>>
>>
>
>
> --
> 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