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

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A: Contractors who run privately managed prisons and provide prisoner escort services

1. Organisations considered for coverage

1.1 There are 2 privately operated prisons in Scotland; HMP Kilmarnock and HMP Addiewell. The remaining 13 prisons in Scotland are operated by the Scottish Prison Service ( SPS), a government agency which is itself subject to the Act. The SPS has contracts with 2 consortia, Kilmarnock Prison Service Limited ( KPSL) and Addiewell Prison Limited ( APL) for the design, construction, management and finance of these prisons, each for a period of 25 years (the HMP Kilmarnock contract expires in 2024, and HMP Addiewell in 2033).

1.2 SPS continues to undertake certain statutory functions that cannot be carried out by the contractor (such as the creation of Home Retention Curfew licenses for prisoners) and oversees the performance of the operator to ensure compliance with the contract. It therefore has a continual presence in both prisons.

1.3 The Scottish Government also contracts out the provision of prisoner escort and court custody services, which are presently provided by Reliance Secure Task Management Ltd under a 7 year contract which expires in 2012.

1.4 The proposed section 5 Order in Annex A contains a class description of the relevant functions of these bodies instead of naming them individually, and so if the contractors providing these services were to change, the new contractors would automatically be covered by the Act.

1.5 The contracts in place for Kilmarnock and Addiewell prisons are for the design, construction, management and finance of the prisons. The proposed coverage would be for the full range of the contracts, and would be for the duration of the contracts. Thereafter, under the proposed Public Records Bill, where records are to be retained for the long-term the commissioning public authority would assume responsibility for this. The records would therefore remain accessible under the Freedom of Information (Scotland) Act 2002.

2. The case for extending coverage

2.1 The provision of private prisons and prisoner escort services are functions of a public nature under contract to a public authority, and so these bodies can be covered by the Act under the terms of section 5(2)(b).

2.2 The provision of prison services by the Scottish Government is required by the Prisons (Scotland) Act 1989. The Government discharges this function through the SPS, which is responsible for administering Scotland's prisons. The functions of these bodies are therefore of a nature that would require them to be performed by a public authority (the Scottish Government) if the body did not perform them.

2.3 There is also significant public funding of these bodies. The unitary (annual) charge for the contract for HMP Addiewell is presently £28.5m; the equivalent for HMP Kilmarnock is £15.8m. Both contracts are for 25 years. The annual cost of the Reliance contract is currently £24.3m.

Would coverage enhance transparency and accountability?

2.4 Whilst the operation of Kilmarnock and Addiewell prisons is contracted out, SPS holds some limited information provided by the contractors in accordance with the requirements of the contracts. (The contracts themselves for example have been published by the SPS.) Additionally, where SPS has received requests for information about either prison, the contractors have cooperated in providing information to them in order to answer requests.

2.5 The contract that is in place for the provision of prisoner escort services requires the contractor to establish and maintain appropriate communication with SPS, from whom information can be requested as an authority subject to the Act. They are also obliged to provide SPS with management information as required in order to monitor performance and delivery of services.

2.6 Arguably, any degree of cooperation between contractor and public body is no substitute for a uniform right of access to information. Coverage by the Act would require the contractors to not only respond direct to requests, but also proactively publish information where possible. It would ensure that there is an equal right of access to information about all prisons in Scotland, whether public or private.

Would coverage be measured and proportionate?

2.8 The Partial Business and Regulatory Impact Assessment at Annex B provides some estimates, based on the evidence available to date, of the resources that might be required by the contractors to comply with the Act.

2.9 There are some factors mitigating the level of resources likely to be required to comply with FOI. Both prisons and Reliance are familiar with the Act through assisting SPS with information requests they receive, by locating information and considering whether, in their view, information is exempt from release.

3. Conclusions

3.1 On balance, at this stage we consider that extending coverage to this sector is, on principle, appropriate. A core public service has been outsourced to private contractors and we do not expect there to be an excessive burden on resources in complying with the Act. It seems anomalous that prisons operated by SPS are covered by the Act whereas those run by private contractors are not.

3.2 The Scottish Government is aware though that the sector has concerns about the cost and proportionality of any extension of coverage to it. The Business and Regulatory Impact Assessment looks at this in more detail and draws some initial conclusions about any additional burden. We are particularly mindful of the importance of establishing whether coverage would place undue financial pressures upon bodies at a time of economic difficulties. Responses to this consultation will therefore provide key evidence for concluding whether extending the coverage and creating additional regulatory or financial requirements would be appropriate and proportionate. A final conclusion will not be reached by Scottish Ministers until the consultation has concluded.

4. Consultation

We invite comments on any of the points made above, and also on the Business and Regulatory Impact Assessment at Annex B which discusses the possible impact on extending coverage to the bodies concerned.

In particular we invite you to consider the following:

  • Are there any factual inaccuracies in our analysis?
  • Is there a case either for or against extending coverage to private prisons and prison escort services that you wish to make?
  • Are you able to provide any evidence to support your arguments?
  • Are there any other comments you wish to make, including any on the partial Business and Regulatory Impact Assessment at Annex B?