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

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D: Leisure, sport and cultural trusts and bodies established by local authorities

1. Organisations considered for coverage

1.1 Local authority trusts and bodies are numerous and vary widely in their size and function. We therefore consider that it would be disproportionate to seek to cover them all. However, bodies established or created by local authorities to provide leisure, sport and cultural services are a relatively small and defined group. They are responsible for managing significant amounts of public money, often on a long-term basis, under a variety of formal contractual arrangements. Those which are 'wholly-owned' are already subject to the Act.

1.2 As with contractors, we wish to establish clear criteria defining the type of body falling within this category. Given the evolving nature of this sector we are proposing a 'class' based description rather than separately listing individual bodies in order to circumvent the need for frequent revision.

1.3 In defining a 'class' based description we have considered whether the length or value of contractual agreements provide appropriate criteria in identifying which trusts the Act should be extended to. However, given the variety of mechanisms used and the different arrangements in place we are not convinced these are the most appropriate criteria to use.

1.4 Equally, we have considered whether reference can be made to local authority accounting practices. Scottish Councils are required to prepare group accounts which identify the material extent and implications of their involvement with certain organisations. This reflects the increasing tendency of local authorities to discharge their functions to a range of different service delivery vehicles which, whilst technically independent, are effectively under the authority's control. However, given the evolutionary nature of accounting practice - indeed the relevant Code of Practice is revised annually - our opinion again is that this would not prove an appropriate way to seek to define this category.

1.5 Instead, we propose to cover those bodies established or created by a local authority for the purposes of providing certain facilities and activities. We also propose to limit coverage to organisations receiving in excess of £100,000 per annum of public money as we believe that including bodies in receipt of less support would be disproportionate. Our initial assessment is that at present 25 trusts potentially fall within scope (these are listed in Annex C). However, it is possible that further bodies will be identified during the consultation process.

1.6 The draft Order at Annex A sets out this 'class' based description of the relevant functions of these bodies, together with the proposed threshold of £100K, rather than naming each body individually. If new trusts were to be created, they would therefore automatically be covered by the Act if they fall within this definition and criteria.

1.7 Under the provisions of section 7(3) of the Act coverage will be limited to the information that trusts hold in respect of the public functions they are delivering - namely the provision of leisure, sport and cultural services. It does not extend to information held about any other functions they may undertake.

2. The case for extending coverage

Background

2.1 Section 5(2)(a) of the Act provides the Scottish Ministers with powers to designate - as a Scottish public authority for the purposes of the Act - any person appearing to the Scottish Ministers to exercise functions of a public nature. In our opinion the trusts described above are delivering functions of a public nature in delivering leisure, sporting and cultural services etc. We consider that these are services which, if not delivered by the trust, would be required to be delivered directly by the local authority.

2.2 There are several relevant statutory requirements which Scottish local authorities are subject to. Section 14 of the Local Government and Planning Act (Scotland) 1982 places a duty on local authorities to ensure that there is adequate provision of facilities for the inhabitants of their area for recreational, sporting, cultural and social activities. In addition, Section 90 of the Local Government (Scotland) Act 1973 (as amended by Section 176 of the Local Government (Scotland) Act 1994) makes reference to the provision of leisure facilities by a local authority. Further, the Local Government in Scotland Act 2003 provides powers for a local authority to do anything considered likely to promote or improve the well-being of its area and persons in its area.

2.3 In addition, we also note that many of those trusts we have identified have responsibility for the stewardship of significant assets, such as leisure centres. We consider that coverage of the Act should, if reasonable, be extended to bodies responsible for the spending of considerable amounts of public money. This would we believe improve scrutiny and accountability of how public money is spent.

2.4 We also note the strong support for extending coverage to such bodies - particularly from local authorities - in response to the Scottish Government's discussion paper at an early stage of this process. We are also aware that the Office of the Scottish Information Commissioner receives inquiries and representations regarding coverage of such bodies.

Would coverage enhance transparency and accountability?

2.5 Some information about leisure trusts will be held by the relevant local authority, which is subject to the Act. Moreover, many of the more recent agreements in place between trusts and local authorities make direct reference to the Act and oblige both parties to cooperate when responding to requests.

2.6 We also note that those trusts which are registered as charities or companies limited by guarantee are already required to place certain information in the public domain, such as annual accounts. Therefore certain information can already be acquired through bodies such as the Office of the Scottish Charity Regulator ( OSCR) or Companies House.

2.7 However, it is clear that access to information about leisure and cultural services is varied and depends on the arrangements in place in a particular local authority. Where such services are still provided 'in-house' by an authority, information about them can be readily obtained under the Act. Similarly, where such a body is 'wholly-owned' by the authority it is covered by the Act. Extension of coverage would therefore address this anomalous situation.

Would coverage be measured and proportionate?

2.8 As noted above, some information about trusts is already obtainable from a variety of sources, including the relevant local authority. There is also little to suggest that local authorities at present receive significant numbers of requests for information relating to the provision of leisure, culture and sport services.

2.9 However, while formal extension of coverage to leisure trusts might in some respects appear disproportionate in terms of the limited quantity of additional information that might become accessible and the administration that would be required in Order to fully comply with the Act, there is a strong argument that for reasons of principle and equity, coverage should be extended to such bodies.

3. Conclusions

3.1 In principle, we favour extending the public's right to know to this sector which delivers key public services. There is a statutory obligation that such services are provided by local authorities, however they are increasingly being delivered by arms-length bodies. Were it not for such trusts being established, local authorities would have to provide these services. There are also significant sums of public money involved - though we are proposing to introduce a minimum funding threshold to ensure that coverage does not impose disproportionate administrative burden on small bodies otherwise falling within scope of the class description.

3.2 The Scottish Government is aware of concerns about the possible burdens of being subject to the Act. 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

4.1 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:

  • Do you agree with the proposed criteria for identifying appropriate trusts? If not, what alternative criteria would you consider appropriate?
  • Do you consider setting a minimum level of annual public funding threshold practicable and reasonable - given that funding is subject to fluctuations?
  • Are there any factual inaccuracies in this analysis? In particular, are there any additional bodies which would meet the proposed definition in Annex A?
  • Is there a case either for or against extending coverage to local authority trusts that you wish to make?
  • Are you able to provide any evidence to support your arguments?
  • Are there other points you wish to make, particularly on the partial Business and Regulatory Impact Assessment at Annex B?