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

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G: Contractors who build, manage and maintain trunk roads under private finance contracts

1. Organisations considered for coverage

1.1 We believe that a distinction should be drawn between contractors who solely construct or maintain roads, and those who operate and maintain a trunk road over an extended period within a privately financed contract. The latter deal with the long term strategic and operational management of the roads network. At present only the 3 contracts listed below fall within this category:

  • M77 Design, Build, Finance and Operate ( DBFO) contract
  • A74 (M6) DBFO contract
  • M80 Stepps to Haggs contract to build, manage and maintain.

1.2 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 be automatically covered by the Act. It includes the condition that only contracts over £90m in value and 30 years in duration are captured by the definition. This would ensure that only these particularly significant construction and maintenance contracts are covered.

1.3 In line with section 7(3) of the Act the proposed coverage is limited to the information the contractors hold in respect of the public functions they are delivering under contract to the public authority. It will not extend to information held in regard to any other functions or operations undertaken by the company. Coverage would be for the duration of the contract. 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.

1.4 Coverage would be of the body which has a direct contractual relationship with the public authority (usually a 'Special Purpose Vehicle'). The duty to comply with the Act would therefore lie with the principal contractor who would need to liaise as necessary with its sub-contractors in handling requests for information. Whilst operations such as construction and facilities management are usually sub-contracted, the sub-contractors will be holding information on behalf of the main contractor and so the right to request information will extend beyond the information held immediately by the principal contractor.

2. Case for coverage

2.1 Contractors who build, manage and maintain trunk roads under private finance contracts are delivering functions on behalf of the Scottish Ministers, who have a duty to manage and maintain trunk roads and, under the Roads (Scotland) Act 1984, also have powers to construct roads. The functions of these bodies as they relate to trunk roads are therefore of a nature that would require them to be performed by a public authority (namely the Scottish Government) if the bodies/contractors did not perform them.

2.2 These contracts are very long term (approximately 30 years), of high value (typically a construction value of around £100m or more), and deliver services of major public benefit. The contractors are responsible for the stewardship of significant public investment, and they are maintaining strategic road infrastructure for a long period of time.

2.3 At present any requests for information regarding the operation of the above trunk roads must be made to the contracting public authority which is covered by the Act, rather than directly to the contractors concerned. Increasing coverage to contractors would allow requests for information to be made directly to them. Equally, it would allow contractors to have full control over how they respond to such requests for information.

Would coverage enhance transparency and accountability?

2.4 At present, when the contracting public authority receives a request for information under the Act concerning one of the above projects it will normally liaise with the relevant contractor to obtain the information (if not already held). This is dependent on the full cooperation of the contractor. Arguably, by directly covering the relevant contractors there will be a far clearer line of accountability in the public's eyes, and a corresponding stronger right of access to information.

Would coverage be measured and proportionate?

2.5 Requests for information about these contracts are currently made through the relevant public authority (Transport Scotland administers these contracts on behalf of the Scottish Ministers). The Partial Business and Regulatory Impact Assessment at Annex B provides some estimates of the levels of resource that might be required by the contractors to comply with the Act. It concludes that the volume of requests received is likely to be low. Between 2008 and 2010 Transport Scotland received 11 FOI requests concerning the above contracts.

3. Conclusion

3.1 Given that these contracts outsource a core public service of substantial expenditure over a significant timeframe, we consider that coverage may well be appropriate.

3.2 The Scottish Government is aware though of the private sector's concerns about the possible financial, administrative, and competitive implications of being subject to FOISA. 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 contractors who build, manage and maintain trunk roads under private finance contracts that you wish to make?
  • Are you able to provide any evidence to support your arguments?
  • Are there any other points you wish to make, particularly on the partial Business and Regulatory Impact Assessment at Annex B?