When the Cabinet Office released its white paper on open data last month I asked this question:

So, can I FOI Service Birmingham now?

This was because, while the Open Data white paper can be viewed as a continuation of policies which develop our right to open data, we are also going through a period where the organisations which provide public services are being dispersed, often out of the public sector itself.

Whether it is privately owned health providers or social enterprises delivering local authority contracts, more and more of the organisations which hold and create the data produced in the course of public services are exempt from Freedom of Information legislation.

My question about?Service Birmingham being FOI-able is because it is a private company established by Birmingham City Council and Capita to run the city’s IT infrastructure and services. To the best of my knowledge it has?always resisted Freedom of Information requests, claiming exemption on the basis of it being a private enterprise.

Off the top of my head, in Birmingham we also have the following

• Amey – A trans national company, whose parent Ferrovial are based in Spain, which has just embarked on a 25 year Private Finance Initiative contract to run the city’s highways network.

• The new Library of Birmingham is now a charitable trust and so is exempt from Freedom of Information legislation.

• Where I live in Balsall Heath is one of three localism pilots in the city where community organisations and housing associations are going to control Community Budgets. My understanding is that Balsall Heath Forum is exempt under the Freedom of Information Act.

• Acivico is a Wholly Owned Company that has been spun out of Birmingham’s Property Services. Their website says “Acivico Ltd is a company created by Birmingham City Council to offer a range of services to the council and other public and private sector organisations.”. As a wholly owned company they ought to?have the same obligations as all other public?authorities in complying with the Freedom Of Information Act [launches PDF], but I don’t think this has been tested yet.

And there are bound to be more in Brum that I’ve forgotten or not heard of.

It’s worth stating at this point that not all of these organisations are antipathetic towards open data. Amey have supplied?at least one response to an FOI request based on their Birmingham contract and?I know from work I’ve done with the new Library of Birmingham that they are interested in the possibilities it offers them. Whether any organisation would willingly respond to some of the more challenging and confrontational FOI requests that are made is questionable though.

So, when the white paper came out last week I was keen to see what it had to say about this issue. All I could find was this, tucked away neatly in the appendix:

The scope of the FOIA is an issue that has been raised in evidence to the Justice Select Committee during post-legislative scrutiny of the Act.?The Government will consider any recommendations of the Committee?before bringing forward any proposals for future policy in relation to the FOIA. With regard to transparency outside the FOIA, the Open Public Services White Paper of July 2011 highlighted the need to strike the right balance between greater service provision in collaboration with private and civil society organisations and continuous transparency. The Government is mindful that transparency should be?proportionate, bearing in mind potential burdens on provider organisations (especially small businesses and charitable organisations). In taking forward transparency and open government, we will, by the end of this year, set out how best we can?achieve greater transparency?by providers.

So, it’s not in their scope, they will take on the recommendations of the committee, but It’s Complicated.

It looks as though open data is brushing up against other interests here. The government has an ideological commitment to what it refers to as the decentralisation of service provision. Above it is implicitly saying this will trump open data.

Another way of putting this is that for our government it’s more important?to move services away from being provided by the public sector than it is to ensure the transparency and scrutiny of those services.

I’d argue that now is the very time when transparency and scrutiny are most important.

So, at this weekend’s Local Gov Camp I’m going to facilitate a session where we talk about how we scrutinise these new decentralised services and the role that open data can play in doing that. I’d like it to include a mapping exercise from those present of where services are being spun out in their authorities and what the responses to any FOI requests have been.

If you have any examples you’d like to see included in this then please add them in the comments.