Contracting Out Services: Record-Keeping and Accountability

1. Public Records (Scotland) Act 2011 Contracting out services, the quality of record-keeping and accountability Dr Kenneth Meechan Head of Information Governance Glasgow City Council Glasgow, 7 December 2012

2. Contracting out services: record keeping and accountability • Back to Shaw • The contractor landscape • Legal requirements for 3rd sector and private contractors • Addressing the issues in procurement • Model contract clauses • Model guidance for contractors

3. Back to the Shaw Report Shaw said this: “…residential services provided to children between 1950 and 1995 were extensive and extremely complex. Hundreds of children's residential establishments existed, with many places changing function, location and management at various times or closing down…” [Shaw Report, chapter 5 section 2]

4. Contractor landscape • Present situation not necessarily any less complex: • Private and voluntary organisations remain major players in children’s residential care and other areas where public records are created • Decades of outsourcing and alternative service delivery models mean that many activities previously see as core public functions are now delivered by bodies not subject to PRSA • Glasgow’s ALEO model is atypical – our ALEOs are (almost all) subject to FOI – most are not

5. The PRSA response to this issue: 2 (1)The authorities to which this Part applies are the bodies, office-holders and other persons listed, or of a description listed, in the schedule 3 (1) In this Act, “public records”, in relation to an authority, means— (b) records created by or on behalf of a contractor in carrying out the authority's functions, (c) records created by any other person that have come into the possession of the authority or a contractor in carrying out the authority's functions. (2)In subsection (1) “contractor”, in relation to an authority, means a person to whom functions of the authority are delegated (whether under a contract or otherwise) by the authority.

6. The PRSA response to this issue: • What this actually means: • Listed public authorities’ records management plans need to address management of public records created by (or which pass into the custody of) the authority’s contractors • Not all records created by contractors will count as public records – so a degree of appraisal will be required • Obligations on the authority under the Act need to be transferred to the contractor by contract

7. The PRSA response to this issue: Direct impact of the PRSA on contractors: [this space is intentionally blank]

8. The PRSA response to this issue: • Problems with this approach: • Presumes sufficient negotiating strength on the part of the public sector purchaser • Takes no account of costs which the contractor will inevitably seek to pass on to the purchaser • Survivorship of records not covered by the Act (e.g. on contractor being dissolved) • even if the public sector purchaser includes something in the contract, this is likely to be ineffective on dissolution

9. The PRSA response to this issue: • Contractor dissolution: in Glasgow in recent years - • The Southern Cross debacle has resulted in ownership and management of around eight care homes transferring • Another two or so have closed for other reasons • About eight child care bodies or nurseries have also closed • We hope the records have been passed on to relevant successor bodies – but we don’t know • Care Inspectorate still has a “wipe the slate clean” policy if a facility is bought over.

10. What’s a poor public authority to do about it? • Build appropriate assessments into your procurement practices • Identify which procurement exercises are likely to involve creation of relevant records • Make sure the tender documentation alerts potential tenderers to what you are looking for – include some specific evaluation criteria on records management and score this • Make sure the tender returns explain their approach fully • If good RM gives people a competitive edge, we will get more good RM • Model procurement toolkit drawn up via SOLAR

11. And after the tendering process is done and dusted? • Tendering processes are useless if you don’t follow them up with legal obligations on your contractor to make good on their promises • Model contract clauses have been agreed by the SOLAR data protection and FOI group, which will hopefully lead to some standardisation across public sector purchasing requirements • Clauses in large measure say “do what you said you would do in your tender submission” – so robust tender evaluation remains crucial. The contract cannot rescue a poorly-procured service • And even the best contract is useless if you don’t monitor compliance. The end of a ten year contract is a bad time to discover they haven’t kept any records…

12. And for the contractors out there, a word from our sponsors… • SCA have usefully drawn up some simple guides aimed primarily at the voluntary sector • These focus on the elements of RM which a public authority is likely to be looking for the voluntary organisation to comply with in the course of tendering for work • The SOLAR procurement template and model clauses dovetail neatly with this guidance.

13. Accountability and contracting out services • Contracting out will always carry some controversy – from the rights of hospital cleaners in the 1980s to the loss of FOI rights which is being decried at present • Imposing sensible RM requirements on contractors can go some way towards maintaining a level of accountability, since there should be an audit trail of what happened and why • But the backstop position remains that the public authorities need to monitor compliance – and this is not necessarily a skill in great supply.