As well as the extensive list of bodies contained in the Act, Section 5 gives the Scottish Ministers the power to designate any private body as a public authority for the purposes of the Act. This power can be exercised where a private body exercises functions of a public nature or are providing any services whose provisions are the function of public authority.
To mark the 10th anniversary of the Act coming into force, the Scottish Information Commissioner - who is responsible for the enforcement of the Act - issued a special report entitled "FOI 10 years on:Are the right organisations covered?". In the report, the Commissioner concluded that, since its introduction, the effective scope of the legislation had actually been reduced with the result that "the rights to access information have diminished and in some areas, such as some social housing, have been lost." The Commissioner attributed that loss to the failure to update the legislation to reflect changes in how public services are delivered.
The Commissioner recommended that the Scottish Government:
- adopt a policy requiring automatic consideration of whether existing rights and duties under the Act should be transferred to bodies taking over over the delivery of services on behalf of, or instead of, public authorities;
- carry out a review to identify where rights to access information under the Act have been lost, and reinstate those rights using their Section 5 powers;
- consider making Section 5 orders immediately in relation to access to information rights about social housing, administered by housing associations, and private prisons; and
- create, maintain and publish a register of arm's-length external organisations (ALEOs)and bodies designated under section 5.
In response to the Commissioner's recommendations, last year the Scottish Government launched a "Consultation on Further Extension of Coverage of the Freedom of Information (Scotland) Act 2002 to More Organisations". The consultation proposed that the Act should be extended from 1 April 2016 to cover the following organisations:
- contractors who run privately-managed prisons;
- providers of secure accommodation for children;
- grant-aided schools; and
- independent special schools.
The Scottish Government's response to the consultation was published in January. Having considered responses received, it is of the view that organisations listed above "perform functions of a public nature – or are providing under contract made with a Scottish public authority a service whose provision is a function of an authority" and so should be subject to the Act.
Although 1 April 2016 had been suggested as the date from which these organisations would be caught by the Act, the responses to the consultation raised concerns that this did not give the organisations concerned much time to prepare for the change. Accordingly, these four types of organisations will find themselves subject to the Act from 1 September 2016.
The schools which will find themselves subject to the Act this year will welcome the Scottish Government's decision to consider allowing schools a longer period to respond to information requests made under the Act during school holidays.
Who is next?
Interestingly, despite the strong recommendation from the Commissioner, the Scottish Government is "not currently persuaded on the merits of extending coverage to housing associations" because it feels that the functions of housing associations are wide ranging and include many functions which are not of a public nature.
The consultation invited suggestions as to other types of body which should be included within the scope of the Act. Around half of all consultation responses made reference to whether registered social landlords ("RSLs") should be subject to the Act. The Scottish Government has concluded that there are persuasive arguments in favour of RSLs being included in the scope of the Act and plans to consult the RSL sector in 2016.
The following organisations were also suggested by respondents as future targets for inclusion under the Act:
- outsourced health and social care providers;
- arm’s length external organisations (ALEOs);
- public transport companies (train and bus);
- third sector organisations;
- energy companies;
- port authorities;
- Hub companies (Hubcos); and
- community councils.
It is clear that the Scottish Government is keen to ensure the Act continues to reflect how key public functions are delivered. With that in mind, these organisations, and indeed any which provide a public service, should consider the possibility that they may soon find themselves subject to the freedom of information regime.
While the extension of the Scottish freedom of information will make it easier for the public to obtain information, many of the organisations involved will be concerned about how much time and money it will cost them to comply with their new obligations. The key to a successful transition will be for organisations to start thinking now about how to make information available to the public and how they will handle information requests.