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Consultation on Extending the Coverage of the Freedom of Information (Scotland) Act 2002

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2. Background

Freedom of Information (Scotland) Act 2002 ('the Act')

The Act provides a statutory right of access to information held by Scottish public authorities. These range from the Scottish Parliament and Ministers, to local authorities, health boards, higher and further education bodies, doctors and dental practitioners.

Written requests for information which are made to the bodies covered by the Act must be answered within 20 working days. Information must be provided unless it is subject to one or more exemptions, as set out in the Act. If a requester is dissatisfied with the response received to a request, he or she can ask the authority to review its decision or handling of the request.

The Scottish Information Commissioner both promotes and enforces the Act. Requesters who remain dissatisfied with the conclusions of an authority's review of their request can appeal to the Commissioner for a decision.

Under the Act, public authorities must also put in place a Publication Scheme which specifies the information which they will routinely publish, and how it can be obtained.

Further detail on the Act and the Commissioner's role is available at www.itspublicknowledge.info.

Extension of coverage

The provisions of the Act can be extended to bodies that carry out functions of a public nature or which provide, under a contract made with a Scottish public authority, a service whose provision 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 Act. They are then subject to the full requirements of the Act as summarised above, and must therefore respond to written requests for information and proactively publish information described in their Publication Scheme.

In accordance with section 7(3) of the Act bodies proposed for coverage would only be covered in respect of the information they hold about their specified 'public functions' or specified services. Their duties under the Act would be limited. For example, where a building contractor builds schools, offices and industrial premises, the Act would only apply to information held about schools construction.

In determining which bodies are candidates for designation under section 5 of the Act, we have considered firstly whether they exercise functions of a public nature, or provide a service whose provision is a function of a Scottish public authority. In particular we have considered:

  • the extent to which the particular functions are derived from or underpinned by statute, or otherwise form part of the functions for which the state has generally assumed responsibilities;
  • the extent of public funding of the activity;
  • whether the functions are of a nature that would require them to be performed by a public authority if the body did not perform them;
  • the degree to which the activities of the body are enmeshed with those of the relevant Scottish public authority;
  • whether the body exercises extensive or monopolistic powers which it would not otherwise have; and
  • the extent to which the body seeks to achieve some collective benefit for the public and is accepted by the public as being entitled to do so.

We have then gone on to take into account the appropriateness of extending coverage, in particular;

  • the extent to which the body is providing a 'core function' of the state and whether it is involved in significant work of a public nature e.g. the provision of front line services in respect of education, health, transport etc;
  • whether the body receives a significant amount of public funding including in the form of grants or fees charged for performing a public function;
  • with regard to contractors, the length and value of the contract. It would be impractical and disproportionate to cover bodies holding short term or low value contracts;
  • the extent to which coverage would enhance transparency and accountability.
  • whether the public have lost rights to access information under the Act as a result of changes in how public services are now delivered, for example, through the use of particular delivery vehicles. There should continue to be public accountability as regards the delivery of public authority functions.
  • the burden of coverage. Improved openness comes at a cost and so any extension of coverage needs therefore to be measured and proportionate.

Other relevant legislation

Bodies covered by the Act are also subject to the Environmental Information (Scotland) Regulations, which must be applied to any requests relating to environmental information. The terms of the Regulations are broadly similar to the Act, however bodies need to be aware of their duties under them. The Scottish Information Commissioner enforces the Regulations in addition to the Act, and provides guidance on them.

The National Archives of Scotland is currently consulting on a Public Records Bill, the terms of which would require certain public authorities to put proper records management processes in place. Where public services are carried out by private or third sector bodies on behalf of public authorities, the records created during the course of that service will be subject to the new legislation.

At this very early stage it is not possible to predict the full implications of the Bill. However, there is potentially scope for the proposed Bill to provide - indirectly - rights to access information about public services delivered by private bodies. When Ministers are examining the conclusions of this consultation about extending coverage of the Act, this factor will be taken into consideration before determining whether coverage is appropriate to particular bodies.

Section 44 of the Climate Change (Scotland) Act 2009 places duties on public bodies relating to climate change, such as helping to deliver the Act's emissions reductions targets.

The duties apply to all 'public bodies' listed in schedule 1 of the Freedom of Information (Scotland) Act 2002, and any bodies covered under a section 5 order. Therefore the bodies proposed for coverage in this consultation paper would also be subject to the climate change duties, which are due to come into force on 1st January 2011. The Scottish Government will publish guidance on the climate change duties for relevant public bodies and, by law, those bodies must have regard to such guidance. This will be available for comment in late summer 2010, before being finalised and published around the turn of the year.

Recent amendments to the Data Protection Act ( DPA) have created powers for the UK Information Commissioner to carry out assessments of public authorities in respect of their duties under the DPA. (Data Protection is a reserved issue, for which the UK Information Commissioner has responsibility UK-wide.) This will include any bodies covered by FOISA by virtue of section 5. Their existing duties under DPA are not affected; they should though be mindful of the Commissioner's powers to assess compliance.

Next steps

This consultation is open for a period of 14 weeks from 28 July 2010, closing on 02 November 2010. We will consider the terms of the responses received before concluding whether or not to extend coverage.

Following detailed consideration of responses we will consider whether it is appropriate to bring an amending Order under section 5 of the Act before the Scottish Parliament. We suggest that the Order would come into force after 12 months, to allow bodies to make the necessary preparations for meeting the requirements of the Act. Both the Office of the Scottish Information Commissioner and the Scottish Government would provide support to those bodies in making their preparations.

Format of Consultation Paper

The remainder of this consultation paper has been split into sections corresponding to the organisations or classes of organisations described at paragraph 1.1.

Section A Contractors who run privately managed prisons and provide prisoner escort services
Section B Contractors who build and/or maintain schools
Section C Contractors who build and maintain hospitals
Section D Leisure, sport and cultural trusts and bodies established by local authorities
Section E Glasgow Housing Association
Section F The Association of Chief Police Officers in Scotland ( ACPOS)
Section G Contractors who build, manage and maintain trunk roads under private finance contracts