Care sector - proposed Freedom of Information extension: consultation advisory subgroup 1: April 2025

Attendees and apologies

External stakeholders:

• Campaign for Freedom of Information in Scotland (CFOIS)
• Scottish Information Commissioner’s Office
• Age Scotland
• Scottish Care
• Member with lived experience
• Glasgow City Council
• UNISON Scotland
• Scottish Social Services Council

Internal stakeholders:

• Scottish Government FOI unit Officials

Apologies:

• COSLA

Items and actions

Items and actions

Welcome/Introductions

The chair gave a brief introduction, a welcome note and provided an overview of the focus of the group.  All participants were given the opportunity to introduce themselves.

Identifying key concerns of providers, supported people and others in relation to any roll out of FOISA in the sector.

There was a discussion on the principle of extending FOI law in the social care sector noting the scope of the potential extension is care home and care at home services.  Concerns about the impact of this were set out in terms of:

• Impact on day-to-day businesses such as lack of funding and resource to respond to FOI requests resulting in workers spending less time delivering care
• Increase in cost of running a care home
• Considerations of commercial confidentiality and data protection
• Disproportionate impact on small care providers
• Concern about potential closure of care homes and loss of places in the sector.

It was also highlighted that care providers are already subject to considerable regulatory and contract reporting requirements.  It was argued these should already provide a level of assurance in regard to transparency.  The important roles of the Care Inspectorate and Scottish Social Services Council were highlighted.

Concern was also expressed about the risk of accidental data breaches associated with responding to FOI requests.  The review and appeal stages of the FOI process can also be challenging for organisations subject to the law and, it was suggested that it would present additional burden for small care providers.

In response to these concerns other participants emphasised the key importance of recognising care as a public service and the need to consider impact on the public, not only organisations. GP practices were cited as an example of private organisations providing public services, and already subject to FOISA.  Staff working in care should already be trained in data protection, and competent in handling personal data with care.

It was highlighted that only a small number (about 1%) of FOI requests to Scottish public authorities escalate into appeals to the Scottish Information Commissioner.

Other contributors emphasised that public services should adhere to the expected standards of transparency. However, better proactive publication by existing public authorities (e.g. local authorities) responsible for commissioning services is key, and if strengthened could reduce the pressures of FOI requests.   There should be stronger transparency around the commissioning of services.

The chair commented that the conversation illustrated the difference of perspectives in the group regarding the level of risk and perceptions of the responsibility, burden and cost associated with extension of FOISA in the sector.

Support available for staff in relation to any roll-out of FOISA in the sector

There was a discussion of the previous experience of extension for the Registered Social Landlord (RSLs) sector.  It was suggested that the number of FOI requests to RSLs have generally been proportionate to the size of the organisation, indicating that the experience of that sector should provide some assurance to other sectors.  In the care sector the emphasis of requests might be expected to focus on areas such as staffing, cleaning etc.  FOISA coverage provides a statutory right to know, so is stronger than a general commitment to transparency.  ‘Problem’ requests and appeals to the Commissioner are not the typical experience. 

The presentation delivered on behalf of the Commissioner’s office at the full meeting of the Consultation Advisory Group on 20 February was referred to. Support, in the form of training and guidance would be available from the Commissioner’s office.

It was suggested that the existing data protection obligations of care providers should provide them with a strong basis for a future roll-out of FOISA compliance. 

It was further suggested that the fear of designation in candidate sectors has always proved worse than the practical reality.  FOISA has real benefits for organisations such as enhanced reputation, profile and trust, and confidence for service users.

Engaging constructively with the sector.

Concern was raised that there may be a false consensus bias within the group.  It was suggested there is a need to get those who deliver services to the table.  Concern was expressed that extension of FOISA is being proposed when those organisations already subject still do not have their own compliance fully embedded.

The perception of consensus for FOISA extension in the care sector (false or otherwise) was challenged by others. Rather, it was felt that the care sector had decided against the extension. Organisations supporting extension do not see it as a ‘done deal.’ Extension of FOI law would bring benefits to the sector.  There is a need to listen to the lived experience of stakeholders in other sectors where FOI has been introduced.

It was commented that transparency and access to information are key to improving working conditions.  However, the improvement of (existing) public sector FOI performance is the primary concern.

The Commissioner plays a key role in monitoring and enforcing FOI performance across the public sector in Scotland.  Previous designations could be used as case studies to understand the practicalities of the extension.

BREAK

Information governance in care – how well prepared is the sector already?

It was commented that there had been a significant improvement in information governance in the sector since the introduction of GDPR.  Use of AI tools in meetings, with associated data protection risks, pose a new challenge.

FOI compliance can be seen as one string of an organisation’s wider approach to customer engagement. The preparedness of an organisation largely depends on the size of the organisation and existing structures in place.  

A specific question was asked in relation to individual care at home providers/personal assistants working as part of a co-operative to provide resilience if these organisations would be within scope of the extension. 

A Scottish government official indicated that further clarification may be required. However, any organisation required to register with the Care Inspectorate as a ‘care at home’ support service would be within scope of the commitment to consult.  ‘Day Care’ centres are not within the scope of the current commitment to consult.  Notwithstanding, some services which provide day centres, as part of wider ‘care at home’ might possibly be.

Reflecting practical themes in consultation document

A suggestion was made that the Scottish Government should look to engage stakeholders through a ‘workshop’ rather than a traditional consultation.  This should be neutrally facilitated and should include staff and users of care services.  

The PANEL principle approach advocated by the Scottish Human Rights Commission, to enable informed evidence led policy, was noted.

It was suggested that engagement should include an exercise looking at ‘why not FOI’ i.e. the downsides of extension to ensure balance.  This should include effective cost/benefits analysis.

Others emphasised the need for partnership and networks for information sharing.

The need for consideration of proportionality in terms of the needs of service providers in the sector was also highlighted.

Any other business

It was agreed a further meeting of the group should convened later in April, after the Easter recess.

End of meeting

Meeting closed at 15:31