The Scottish Government has initiated a Consultation on further extension of coverage of the Freedom of Information (Scotland) Act 2002 (“FoIS”) to more organisations, specifically contractors who run privately managed prisons, providers of secure accommodation for children, grant-aided schools and independent special schools.
FoIS 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. However, the provisions of FoIS can be extended to 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 s5 of FoIS, which designates those bodies as a Scottish public authority for the purposes of FoIS. They are then subject to the full requirements of FoIS. They would also automatically become subject to the requirements of the Environmental Information (Scotland) Regulations 2004. In accordance with s7(3) of FoIS, bodies proposed for coverage would be covered only in respect of the information they hold about specified public functions or services. Their duties under FoIS would therefore be limited to those functions or services as set out in the Order.
The Scottish Government brought forward Scotland’s first Order under s5(1) of FoIS in September 2013. Following consideration by the Parliament the Order came into effect on 1 April 2014. The Order extended coverage of FoIS to certain trusts which have been created by local authorities to deliver sporting, cultural and leisure facilities and/or activities on behalf of the local authority(ies).
The Scottish Government are now consulting on options for further extension of coverage. They are proposing to lay an Order in the Scottish Parliament in Autumn 2015. Subject to the Scottish Parliament supporting the Order, they would expect the bodies covered to become subject to FoIS and the EIR from Spring 2016. In addition to the organisations discussed in the Consultation Paper, suggestions are sought as to what other bodies – whether individually or collectively – should be considered in any future consultation.
In the previous consultation in 2010 the Scottish Government adopted a factor-based approach in determining the extent to which a function of an organisation could be described as being ‘of a public nature’. They continue to believe that a factor-based approach is appropriate, and that a range of factors should be considered in assessing the ‘public nature’ of particular functions undertaken by certain organisations.
The Consultation Paper notes that the Scottish Information Commissioner has called for the extension of FoIS coverage to social housing owned by RSLs. For a number of reasons, the Scottish Government are not currently persuaded of the merits of extending coverage to housing associations.
The Scottish Government do, however, consider that a number of factors apply in relation to the functions undertaken, or services provided, by those various organisations highlighted in the Consultation Paper. In particular, there is a focus on organisations who, for the purposes of s5 of FoIS, undertake functions of a public nature or provide a service that is a function of a public authority(ies) relating to security, care and education.
The organisations considered for inclusion at this stage are:
- contractors who run privately-managed prisons
- providers of secure accommodation for children
- grant-aided schools
- independent special schools
With all these groups it is envisaged that any Order would provide a ‘class description’ in respect of the particular function undertaken or service provided. Given the potential for contractors or service providers to change over a period of time, a ‘class description’ gives more flexibility than listing specific bodies or contractors in the Order.