Care home and 'care at home' service providers - FOISA extension: consultation

3. Extension of FOISA to private and third sector operated care home and ‘care at home’ services.

The Freedom of Information (Scotland) Act 2002 (FOISA) and Environmental Information (Scotland) Regulations 2004 (EIRs).

FOISA provides a right to access information held by Scottish public authorities. It places duties on all Scottish public authorities to:

• Proactively publish certain information about their work
• Provide information in response to requests, within 20 working days
• Provide advice and assistance to requesters of information

The EIRs provide similar rights, specifically for environmental information. Release of information under FOISA or the EIRs is considered to be release into the public domain.

FOISA and the EIRs contain exemptions to protect sensitive information, including personal data. Therefore, FOISA and the EIRs are generally not the route by which any individual should seek to access information which relates to themself personally or to any other individual. To access their own personal data, individuals should exercise their subject access rights under data protection law.

3.1 Scottish Ministers’ power to extend coverage (section 5)

Under section 5 of FOISA, the Scottish Ministers may designate as a ‘Scottish public authority’, for the purposes of FOISA and the EIRs any organisations which:

(a) appear to the Scottish Ministers to exercise functions of a public nature; or

(b) are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority

Previous section 5 orders have extended FOISA to:

(a) arms-length external organisations set up by local authorities to deliver recreational, sporting, cultural or social facilities and activities (2013 Order)

(b) grant-aided schools and independent special schools (2016 Order)

(c) providers of secure accommodation (2016 Order)

(d) Scottish Health Innovations Limited (2016 Order)

(e) private prison contractors (2016 Order)

(f) registered social landlords (2019 Order)

3.2 Factors based approach to extending coverage

FOISA does not provide a definition of ‘functions of a public nature’. However, the Scottish Government considers that these factors can be used as part of its determination of whether an organisation – or category of organisations - delivers such functions:

• the extent to which 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;
• whether the body exercises extensive or monopolistic powers;
• the extent to which the body is subject to state regulation, oversight or control.

More widely, we would also consider as part of this assessment process:

• whether the public have lost rights to access information under the Act as a result of outsourcing of how public services are delivered;
• whether coverage would impose a significant administrative burden that may be considered to have a disproportionate business impact;
• 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.

3.3 Purpose of this consultation

The purpose of this consultation is therefore to:

• inform the Scottish Government’s determination of whether (and when) providers of care home and ‘care at home’ services can be considered to be providing functions of a public nature, or to be delivering the functions of Scottish public authorities under contract.
• subject to that determination, to inform the Scottish Government’s decision-making regarding the use of Ministers’ power to extend FOISA to such services.