Other means of accessing information
35. As outlined above, the focus of this consultation is on organisations providing services on behalf of the public sector. However, they will be doing so under contract with existing Scottish public authorities which are, of course, subject to FOISA in their own right. This means that requests can already be made to one of the parties to the contract – for example, the Scottish Government receives requests for information about the contracts it has with contractors who provide roads and other infrastructure, and local authorities receive requests for information about the contracts they have with contractors who build and maintain facilities like schools.
36. It is therefore already possible to access some information about services provided on behalf of the public sector, by asking the Scottish public authority that has contracted out the service.
37. However, this assists only in relation to information held by the Scottish public authority itself. It may be that some information is held only by the organisation that has the contract to provide the service. FOISA does not enable direct access to this information, as the organisation is not a Scottish public authority in its own right. That said, the information may still be accessible if the contract contains provisions about the disclosure of information between the contractor and the authority. Provisions of this nature would typically oblige the contractor to provide information to the authority if needed in order to respond to an FOI request.
38. The Scottish Government's Open Contracting Strategy sets out the ambition to proactively publish more procurement information. Since the publication of the strategy the Scottish Government has included a transparency clause within its standard terms and conditions to make its intentions regarding the publication of information clear to suppliers. Other Scottish public authorities may include similar provisions.
39. The Scottish Ministers are required to publish a Code of Practice under FOISA, setting out best practice guidance for Scottish public authorities. Authorities that include provisions about the disclosure of information by contractors are following FOI best practice, but they are not required to do so. Accordingly, we would be interested in views about how well this contractual approach to accessing information is working.
Do you have any comments or evidence about the effectiveness of accessing information about a contract to provide services to the public sector by making requests to the Scottish public authority that has contracted out the service?
Examples of situations where you have successfully accessed information in this way or where you have experienced barriers to accessing information in this way would be helpful.
Examples of authorities' and contractors' experiences of including provisions about the disclosure of information by contractors would also be helpful.