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Freedom of Information in the private sector?

24 May 2013
The Confederation of British Industry ("CBI") has revealed that it is developing "transparency guidelines" that will apply to private companies that provide services to the NHS (the "Guidelines").

The CBI's public service strategy board, which includes managers and directors from some of the UK's most high-profile outsourcing firms, will be responsible for drawing up the Guidelines which have already been dubbed "an industry version of FOI" (Health Service Journal: May 15, 2013).

The Guidelines follow closely on the heels of the report produced by Monitor in March entitled: "A fair playing field for the benefit of NHS patients" (the "Monitor Report"), following its review of the opportunities available to potential NHS service providers.

The Monitor Report favoured increased transparency in the health sector, stating:

"[H]istorically, public providers have faced higher levels of scrutiny than other providers… This degree of scrutiny can improve accountability to patients and promote good practice."

At present most private providers are not subject to the Freedom of Information Act ("FOIA") but since NHS commissioners are, the current NHS standard contract sets out a number of transparency requirements with which private and charitable providers must comply.  These include, for example, a requirement that such providers should provide information to commissioners who are the subject of FOIA requests.

The Monitor Report highlighted the inconsistencies in the current approach, explaining that extending FOIA requirements to private and charitable providers did not appear to be "operating effectively as yet" and noting that, in any event, "other aspects of transparency do not apply across all types of provider." The Report, therefore, recommended that the Government should ensure transparency is "implemented across all types of provider of NHS services on a consistent basis."

These Guidelines appear to be aiming towards this consistency of approach, although at present it is unclear precisely what their scope and impact will be. However, with transparency now firmly on the agenda for private companies providing services to the public sector, there is clearly potential for similar guidelines to be introduced in other industries, beyond healthcare.

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