Access to Information and the Future of the Public-Private Distinction

In recent decades, there has been a global expansion of freedom of information (FOI) laws. Today, over 110 countries have such legislation in place, designed to enhance transparency and accountability. Yet, in most states, these laws are limited to governmental or other public bodies. The privatisation and outsourcing of public services thus raises important questions about the purpose and scope of FOI legislation.

This paper examines the challenges posed by privatisation to the operation of FOI legislation within the United Kingdom. In doing do, it considers whether the public-private distinction is still a useful concept for describing legal and societal structures. Through an analysis of the meaning of ‘functions of a public nature,’ the paper argues that the public-private distinction is conceptually relevant, though it is necessary to clarify what makes public services ‘public.’