SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK
SCOTTISH PUBLIC AUTHORITIES - WHO DOES FREEDOM OF INFORMATION APPLY TO?
3.1 CONTENT AND LEARNING OBJECTIVES
This module explains which bodies have obligations under the Freedom of Information (Scotland) Act 2002 and why some public authorities which operate in Scotland are not subject to it. It explains how some private organisations can be made subject to the Act and about what happens in the rest of the UK. Once you have worked your way through this module you should understand:
- Which public authorities the Act applies to
- How organisations in the private sector can be made subject to it.
SUGGESTED TIME ALLOCATION: 1 hour
3.2 LEARNING MATERIALS
3.2.1 Which bodies are covered by the FOISA?
The Act lists those authorities which are covered in a Schedule. They include the Scottish Executive including its agencies, the police service in Scotland, the NHS Scotland and all Scottish local authorities. There are also a number of Scottish non-departmental public bodies listed, for example Highlands and Islands Enterprise and Scottish National Heritage.
It is a comprehensive list and most organisations exercising public functions will be included.
3.2.2 Adding or removing public authorities from the Schedule
The way that public services are delivered changes from time to time and new public authorities may be created or existing ones altered. The Act provides for this by enabling Scottish Ministers to amend, by order, the schedule which lists those public authorities to which the Act applies. They can add or remove relevant authorities from the schedule. This might happen if a new public authority is created or if functions are transferred and a public authority ceases to function.
3.2.3 Public authorities to which the Act has a limited application
An organisation does not have to be included for all of its functions. It is possible for an order to designate an authority for only specified functions and to exclude others. An order does not have to apply to all the functions of a public authority.
3.2.4 Organisations in the private sector
The Act allows for Scottish Ministers to apply the Act to private sector organisations, by order, but only in limited circumstances. The organisation must be one which is exercising functions of a public nature or is providing a public service under a contract made with a Scottish public authority.
Before the Act can be applied to any private sector organisation the Scottish Ministers must consult everyone who would be covered by such an order and those who appear to represent them. An order can apply to one or more specified organisations or a class of organisations. It must also specify the service being delivered or the contract in question.
For example, a contractor running a service for a public authority such as a hospital or a school may be designated as a public authority for that service.
3.2.5 Publicly owned companies
Some limited companies are wholly owned by a public authority. For example a university may wholly own a publishing company or a research company. Such companies are included in the definition of a public authority under the Act. A company is treated as publicly owned if it is owned by the Scottish Ministers or another Scottish public authority. You should look for guidance on this issue if it affects your authority.
3.2.6 What happens in the rest of the UK?
There is a separate piece of legislation which applies to England, Wales and Northern Ireland - the Freedom of Information Act 2000. This is broadly similar to FOISA - it provides for a right of access and publication schemes and contains exemptions. It is enforced by the UK Information Commissioner. Some authorities that operate in Scotland but that deal with non-devolved matters may be subject to the UK Act rather than the FOISA, for example the BBC and the Scottish Advisory Committee on Telecommunications.
3.3 THE STRATEGIC VIEW
An authority should understand how it is covered by the Act and whether it has any wholly owned companies that will be covered by the Act and how these companies will comply.
The Act will apply to public authorities. Authorities that will be subject to the Act include the Scottish Executive, the Scottish Parliament, the police service, the NHS and local authorities. Certain non-departmental public bodies will also be covered, such as Highlands and Islands Enterprise. The Act applies to limited companies that are wholly owned by a public authority and, if designated, it may even apply to private companies carrying out functions for a public authority, for example under a contract.
Functions of a public nature
Functions are of a public nature where they are concerned with the actions of the state in ordering society rather than purely private rights.
An order is a term for secondary legislation made by the Scottish Parliament to give effect to more detailed areas under the law.
UK Information Commissioner
The UK Information Commissioner is different from the Scottish Information Commissioner. The UK Information Commissioner has responsibility throughout the UK for data protection and has responsibility for freedom of information in England, Wales and Northern Ireland, and for cross-border public authorities. One of his Assistant Commissioners specifically deals with data protection as it relates to Scotland. The Scottish Information Commissioner only has responsibility for freedom of information in Scotland, not for data protection, although he will liaise closely with the UK Information Commissioner. (See (UK) Freedom of Information Act 2000).
Section 4 FOISA Power to amend Schedule 1
Section 5 FOISA Power to designate Scottish public authorities
Section 6 FOISA Publicly owned companies
Section 7 FOISA Public authorities to which the Act has a limited application
Schedule 1 FOISA Scottish public authorities
UK Act: www.hmso.gov.uk
3.8 SELF ASSESSMENT CHECKLIST
1. The Act will apply to the following bodies:
- the NHS in Scotland
- the Scottish Executive
- limited companies wholly-owned by public authorities, and
- Scottish Water.
TRUE or FALSE?
2. The definition of public authorities extends to companies that are wholly-owned by public bodies, unless the owning body is covered for some of its functions only. TRUE or FALSE?
3. Where a private sector body performs a public service under a contract made with a Scottish public authority, the Act can be applied to such a private sector body by way of an Order made by a Scottish Minister. TRUE or FALSE?
4. The Scottish Parliament has power to pass legislation on anything that falls within the "reserved matters" listed in Schedule 5 of the Scotland Act 1998. TRUE or FALSE?
Click here for answers
3.9 WHAT THEY SAID
"…it is important to ensure there is proper coverage….there should be no gaps." (Gordon Jackson - MSP)
"…the Bill applies across the length and breadth of the Scottish public sector" (Jim Wallace - MSP)
"The Bill is an interesting document for finding out how many organisations in Scotland are public bodies. Public servants, ministers and quangos are listed in vast array." (Alastair Morgan - MSP)
"… commercial organisations and voluntary and community bodies should be open to scrutiny when they undertake public work and spend public money." (Roseanna Cunningham - MSP)
"Schemes that are to be built for the public and part-funded with public money should be open enough to ensure the beneficiaries are not mainly the shareholders in the private sector." (John Farquhar Munro - MSP)
3.10 CASE STUDY
The Highlands Care Initiative was set up in 1999 as a non-profit making limited company to provide an integrated service to clients in remote areas in need of social services, medical or other support. In view of the difficulties of service delivery in some areas it was recognised that an integrated delivery would offer both savings and improvements in the level of service.
The initiative employs an administrator and provides a number of vehicles which are available to all of the participants. It has set up video conferencing facilities in rural areas, with links that allow routine exchanges, for example clients use them to hold regular discussions with social workers. They are also used by nurses who link through to doctors while in consultation with the patient.
The partners in the initiative are the local Health Board and local Social Services. There is a Board with representatives of the partners which decides on major issues.
Other aspects of the administration of the Initiative are governed by a set of agreements and protocols. The protocols deal primarily with the flow of information about patients.
The administrator arranged for the purchase of the video conferencing equipment and the vehicles and is responsible for their maintenance as well as booking their use by the partners.
Answer the following questions, based on the material you have read in the learning materials for this module:
1. Is the Initiative a public authority under the FOISA?
2. The Initiative receives a request for information about the purchase of the vehicles and the video conferencing equipment. Does the Initiative have to provide information about the purchase under the FOISA?
3. If a request for the same information is made to each of the partners, will they have to provide the information under the FOISA?