Elizabeth Denham—British Columbia’s former Information and Privacy Commissioner, who aggressively pushed freedom of information and privacy issues here—is now doing a similar job in the United Kingdom. After approval from Queen Elizabeth, Denham was appointed UK Information Commissioner on July 15, 2016 – and in at least one important area she is going further than she was able to go in Canada.
Denham will be pushing for UK Freedom of Information (FOI) legislation to cover more of the private companies that deliver public services, something she was not able to persuade BC’s legislative committee on Freedom of Information and Privacy to endorse.
In British Columbia private companies delivering public services are neither subject to our FOI Act nor to any other sort of “transparency principles”.
UK media reports on their new Commissioner have focused on what they consider Denham’s aggressive approach in Canada. The BBC reports, “she was particularly noted for a hard-hitting investigation last year into a ministerial official deleting emails covered by an FOI request.” The Guardian noted that in her work as Canada’s Assistant Privacy Commissioner she led a “groundbreaking” investigation into privacy on Facebook, which resulted in global changes to the social networking site.
The BBC also reports that at least some people expect Denham to be more “outspoken and aggressive” than her predecessor in the post.
In the BBC interview Denham said one of her first orders of business would be to tackle a huge backlog of complaints, something she would be familiar with from BC. She also said she would be going after organizations with a poor record of responding to FOI requests in a timely way, such as the UK’s Cabinet Office. In BC Denham pressed for a government to have a “duty to document” their decisions. This was subsequently recommended by the Legislative Committee reviewing the legislation. Asked about this idea for the UK she responded, “I think the principle is right. I need to understand more about the legal context in the UK to see where such a duty should rest.”
Denham has also said she would oppose government suggestions to introduce fees on people who want to appeal FOI rulings. She said: “Introducing new fees could potentially lead to a chill in requesters making use of the appeal process. From a high-level principle stance, I think having no charge for applicants is positive for the entire system.”
Denham said she particularly wants to improve the transparency of public services delivered by private companies, as more and more national and local state functions are outsourced. She says she will be raising this issue with ministers. According to Denham, “Private contractors above a certain threshold for a contract or doing some specific types of work could be included under the FOI Act. The government could do more to include private bodies that are basically doing work on behalf of the public.”
If Elizabeth Denham is able to persuade the UK to extend its legislation to private companies delivering public services, the UK will be the new world leader for FOI.
Currently, the UK Cabinet Office has a set of “Accountability Principles” for private companies delivering outsourced public services. They have promised to work with suppliers to craft a “mutually binding contractual clause on transparency”, and promised that all public sector contracts would in future be drawn up with “a presumption in favour of disclosing information” to the public. The changes, however, stopped short of addressing the suggestion that private providers be subject to the Freedom of Information Act – which had been called for by MPs on the Public Accounts Committee.
In British Columbia private companies delivering public services are neither subject to our FOI Act nor to any other sort of “transparency principles”. And these private companies deliver hundreds of millions of dollar worth of work.
The Maximus corporation, for example, has a contract with the Ministry of Health to deliver health information services worth $203 million. The Fraser Health Authority alone has $495 million worth of contracts related to the operation of facilities such as food services, housekeeping, laundry, security and leases. While these are some of the bigger numbers there are hundreds of millions more in smaller contracts for health and transportation public private partnerships.
BC once prided itself on being a world leader for FOI legislation. Changes now promised by the government may make improvements. However, if Elizabeth Denham is able to persuade the UK to extend its legislation to private companies delivering public services, the UK will be the new world leader and Denham will certainly have earned the Queen’s approval.