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

Tue Nov 16 16:33:41 UTC 2010

Well, but it is stillin the scope of the Act...I disagree but I will spare
this list of this exchange so we can have a beer in some bar in Montevideo
(or else) to argue about it.
Best,
F.

On 16 November 2010 16:29, <toby at law-democracy.org> wrote:

>
> 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
> >> >> >>
> >> >> >> SHEFFIELD
> >> >> >>
> >> >> >> England
> >> >> >>
> >> >> >> S1 2BX
> >> >> >>
> >> >> >> Phone: +44 (0)114 2212123  Fax: +44 (0)114 2212124
> >> >> >>
> >> >> >> Email: tony at technophobia.co.uk
> >> >> >>
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> >> >> >> _______________________________________________
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> >> >> >>
> >> >> >> _______________________________________________
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> >> >> >>
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> >> >> >
> >> >> >
> >> >> >
> >> >> > --
> >> >> > Francis Davey
> >> >> >
> >> >> > _______________________________________________
> >> >> > ORG-law mailing list
> >> >> > ORG-law at lists.openrightsgroup.org
> >> >> > http://lists.openrightsgroup.org/mailman/listinfo/org-law
> >> >> > _______________________________________________
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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
> >> >>
> >> >>
> >> >> _______________________________________________
> >> >> open-government mailing list
> >> >> open-government at lists.okfn.org
> >> >> http://lists.okfn.org/mailman/listinfo/open-government
> >> >>
> >> >
> >> >
> >> >
> >> > --
> >> > 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
>
>

-- 
Fabrizio Scrollini
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