Dodging the Freedom of Information Act: Why the Big Society poses a big threat to journalists

For as long as the Coalition have been in government, we’ve heard talk about the ‘Big Society’. In its broadest sense, it’s supposed to be about empowering communities to do things for themselves.

Critics – public sector trade unions, for example – argue it’s a back-door way to reduce the size of the State, shifting as much as possible out of the public sector and either into the private sector or the very grey area of non-for-profit organisations and social enterprises.

For journalists – and, indeed, anyone with an interest in holding those who spend our money to account – there’s a danger that Big Society = Big threat to our right to know.

Put simply, at the moment, if a service currently provided within the public sector – and therefore subject to FOI – is moved into the private sector, or third-party organisation, there is no guarantee that FOI legislation will follow with it.

My understanding is that those at the very top of Government are reluctant to insist on the same levels of transparency should a service move out of direct public sector control because they fear it might be seen as ‘red tape’ which puts would-be providers off.

There is an argument which says that the organisation commissioning the service from the third party organisation – a council or primary care trust, for example – should still be able to provide all the information you might want, but we already know this isn’t the case.

When I do FOI training, I often use an FOI request put in by Heather Brooke when she was working with the Help Me Investigate project in Birmingham – about the cost of the city council’s new website.

The FOI request brings out some good answers – followed up here by the Birmingham Post – but key documents and minutes surrounding the build – and delays – of the website were off limits because the work was carried out by outsourcing firm Capita.

The whole concept of social enterprises running services threatens to make that situation much more common, as reporters at the Huddersfield Examiner are already finding. Huddersfield is home to Kirklees Council, so reporters are already used to being told ‘no’ to FOI requests when the answer should be ‘yes’ – thanks to a council leader who is said to take a very personal interest in FOI requests. 

Now the local primary care trust, operating under the name NHS Kirklees, is finding reasons to say no to information most journalists would consider bread and butter information – such as number of MRSA cases a local hospital has recorded, the number of attacks on staff and the number of times records have gone missing.

Why? Because NHS Kirklees has commissioned an organisation called Locala, which describes itself as  a  ‘Community Interest Company (CIC) an independent, not for profit social enterprise.’ And therefore exempt from FOI. Which, considering it provides most of the services at Holme Valley Memorial Hospital.

You can read about the Examiner’s problems getting information out of the organisation here.  

On its website, Locala boasts about having the ‘freedom to improve and develop what we do. We still deliver NHS services but in a much more coordinated, integrated and community focussed way.’ Community focused, but not open to community questioning, it would seem.

It goes on to state that ‘We continue to be part of the NHS family and deliver care under the same ethos.’

Apart from when it comes to giving access to information.

When the Examiner tried to get information you would expect a PCT to hold, the PCT referred the paper on to Locala, which in turn said it had decided that because it didn’t have to adhere to FOI, it wasn;t going to. Very community focused.

Locala said:

“We do not have to provide that information at the moment.

“We have spoken to the PCT and the Information Commissioner’s Office and we don’t fall within that criteria of Freedom of Information legislation.

“When we were formerly part of the NHS we responded to FOI requests, which took up a lot of time.

“We have taken this opportunity, in our new form, to not have to.

“That is not to say we will always take that view of things. This is the current situation in concerning what has happened.

“The law has not kept up with the changes.”

On one hand, the organisation – very keen to stress it isn’t a private provider, even if it is acting like one around access to information – should be praised for being so candid. They’ve basically said ‘the law doesn’t say we have to, so we’re not going to.’

But on the other, they are trying to dress themselves up as an organisation working for the community while refusing the community access to information. On one hand, they say they are part of the NHS family, but when it suits, point out they are not part of the NHS at all.

The net result is that the public is left in the dark. Your right to know? Not when a ‘social enterprise’ is involved.

Locala is right on one thing – a change in the law would force it change the way it behaved. And the fact Locala won’t act within the spirit of the public sector while running services on behalf of the public sector explains why we need the law change – otherwise, for Big Society, you might as well write ‘Big Secret’

One comment

  1. Locala see not answering FOI requests as an “Opportunity” and here’s why.
    1 – The senior manager, Robert Flack received a 20% pay rise when formed.
    2 – The do not reveal the problems reported by the CQC
    3 – They do not want the public to know about a staffing problem that ended up a serious incident.
    4 – They are collecting patient information without permission and possibly in breach of data protection regulations.
    5 – They are loosing contracts from the Mid Yorkshire Hospital Trust
    6 – They have never had to tender for the £120 million contract from the Kirklees PCT

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