North of the border

December 8th, 2017

The Scottish Government are consulting, until 7 March 2018, on a Draft Order, to commence on 1 April 2019, extending coverage of the Freedom of Information (Scotland) Act 2002 (“the Act”) to Registered Social Landlords, (“RSLs”) and their subsidiaries. The Act provides a statutory right of access to information held by Scottish public authorities. These range from the Scottish Parliament and Government to local authorities, NHS boards, higher and further education bodies, doctors and dental practitioners. The provisions of the Act can be extended to other bodies, including private bodies, that carry out functions of a public nature or which provide, under a contract with a Scottish public authority, a service which is a function of that authority. This can be done by making an Order under Section 5 of the Act, which designates those bodies as a Scottish public authority for the purposes of the legislation. They are then subject to the full requirements of the Act, as well as becoming automatically subject to the Environmental Information (Scotland) Regulations 2004.

Bodies designated under Section 5 are subject to the Act in respect of the information they hold about specified public functions or services. Their duties under the Act would therefore be limited to those functions or services as set out in the Order.

To date, two Orders under Section 5 of the Act have been agreed by the Scottish Parliament and are in force. The Orders have designated as public authorities for the purposes of the Act certain arm’s length organisations, private prison contractors, providers of secure accommodation for children, grant-aided and independent special schools and Scottish Health Innovation Ltd.

In line with its incremental approach to extending coverage, in December 2016 the Scottish Government published a consultation paper on extending coverage of the Act to RSLs. The paper proposed that, subject to consultation, RSLs should be brought within scope of Scotland’s Freedom of Information legislation. Following consultation, the Scottish Government published an Interim Report highlighting key issues raised during the consultation exercise. The premise of the consultation was that RSLs should be designated as public authorities for the purposes of the Act in order to provide the same information rights to tenants of RSLs (and anyone else requesting information) mirroring those rights already available to anyone wishing to request information from a local authority landlord.

Having considered all issues in respect of the consultation, the Scottish Government is of the view that RSLs should be designated as public authorities for the purposes of the Act insofar as they undertake functions for which they are already subject to regulation by the Scottish Housing Regulator (as referenced at Section 3 of the Housing (Scotland) Act 2010). The intention is to align information access rights to the regulatory powers of the body responsible for overseeing RSLs. The Order therefore proposes to designate RSLs insofar as they undertake functions as defined by the term ‘housing activities’ at Section 165 of the Housing (Scotland) Act 2010 and in respect of which are already subject to regulation by the Scottish Housing Regulator.

In the interests of consistency, and acknowledging the close relationship between parent RSLs and their subsidiaries, it is proposed to include within scope of the Order RSL subsidiaries (as defined in Section 164(c) of the Housing (Scotland) Act 2010) within the terms of the draft Order.

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