Consideration of Section 5 FOISA Designation of the Convention of Scottish Local Authorities and other bodies: FOI release
Information request and response under the Freedom of Information (Scotland) Act 2002.
Information requested
1. Has the Scottish Government considered, since 1 January 2020, the designation of the Convention of Scottish Local Authorities (COSLA) as a Scottish public authority under section 5 of FOISA?
- Please provide any internal or external legal advice, ministerial submissions, policy papers, or correspondence on this subject.
- Please include any risk assessments or equality impact assessments undertaken.
2. Has the Scottish Government considered the designation of any other membership organisations, umbrella bodies, or arm’s-length organisations which influence or provide local government or public services (e.g. Integration Joint Boards, representative associations, or ALEOs) under section 5 of FOISA?
- Please provide details of which bodies have been considered, and any relevant papers, correspondence, or outcomes.
3. Please confirm whether Ministers intend to review the scope of FOISA to ensure that bodies which significantly influence statutory public authorities (such as COSLA) are themselves subject to FOI obligations, and provide any timetables, consultations, or briefing materials relevant to this.
If no consideration has been made, please confirm this explicitly and provide the Scottish Government’s rationale for excluding COSLA and comparable organisations from FOISA coverage..
In your subsequent message of 5 September you confirmed:
For part 2 of my request, I confirm that I am content to limit the scope to 1 January 2020 onwards, to align with part 1.
However, to preserve transparency and avoid loss of accountability, I also ask that you:
- Provide a schedule of any pre-2020 material held (document titles, authors, and dates) regarding the consideration of COSLA or other membership/umbrella/arm’s-length bodies for designation under section 5 of FOISA. This will allow me to decide whether a separate follow-up request is appropriate.
Response
Scottish Government FOI policy objectives
Before moving to the formal response to your request it may be helpful if I set out a little information about the Scottish Government's commitment to considering extension of FOISA, as part of our FOI Policy Objectives 2024-26: Freedom of information policy objectives: 2024 to 2026 - gov.scot.
Workstream 1 of the Objectives sets out our approach to the consideration and use of Scottish Ministers' power under section 5 of FOISA to extend coverage of FOISA to further entities. Our lead commitment under that workstream is the commitment to consult on extension of FOISA to private and third sector providers of care home and 'care at home' services. A Consultation Advisory Group, including a range of stakeholders, was established earlier this year to inform the approach to consultation. You can find information about the Group, and its three sub-groups, including minutes from its meetings at the following link: Care sector - proposed Freedom of Information extension: Consultation Advisory Group - gov.scot.
This work is currently the primary focus of the FOI Unit's policy work in relation to extension. However, we have also set out the Scottish Government's objective to, 'Develop and set out a clear, structured and consistent approach to the wider use of the section 5 extension power going forward'. We will do so, drawing on the input of stakeholders and on outcomes from our consultation on Access to Information Rights in Scotland 2022-23 and our earlier consultation on extension of FOISA in 2019, see:
Access to information rights consultation: response - gov.scot
Freedom of information - extension of coverage: consultation analysis - gov.scot
Response to your request
I have provided most of the information you have requested under part 1 of your request. As set out above, consideration of extension to COSLA has not been the principal focus of our work in relation to extension of FOISA in recent years. However, as reflected in the analysis of responses to the 2019 consultation on extension of coverage, the position of COSLA was raised by one respondent to the 2019 consultation. The Scottish Information Commissioner's response to the consultation also highlighted that the position of the organisation had been raised with his office in the past. See:
Our work in relation to extension since the publication of the Scottish Government's analysis to the consultation has therefore discussed the position of COSLA. The enclosed documents reflect this. However, there have been no Ministerial submissions, risk assessments or impact assessments carried out. The enclosures include parts of an outline policy paper which was drafted in 2021. I would emphasise that this was a draft document, which was never finalised.
An internal Improving Public Engagement Division paper on the potential role of a Short-Life Working Group to contribute to the development of the wider approach to extension of FOISA is also included. To date we have not decided to establish such a group. Instead, the Consultation Advisory Group looking specifically at the approach to extension in the care sector has been established.
In relation to part 2 of your request, I have also provided most of the information you have requested, created since 1 January 2020. I have also enclosed a schedule of older relevant items identified from a search of relevant FOI Unit electronic files. The terms 'membership organisation', 'umbrella body', and 'arm’s-length organisation' are informal terms. I have therefore had to exercise some judgement regarding which bodies might be considered to fall within the scope of your request. I have understood your request to relate to bodies which are not, at the current time, already subject to FOISA. I have therefore not included any documents which relate purely to the 2013 extension of FOISA to local authority culture and leisure 'arms-length organisations' (ALEOs). However, where exchanges refer to other forms of local authority ALEOs these have been included.
Across parts 1 and 2 some information has been withheld because exemptions under s29(1)(a) (formulation and development of policy, s30(c) (effective conduct of public affairs), 36(1) (legal advice) and s38(1)(b) (personal information) apply. The reasons why these exemptions apply are set out in the Annex to this letter. Other redactions to documents have been made to remove material which is not relevant to your request.
In relation to part 3 of your request I can confirm that the Scottish Government intends to continue to review the coverage of FOISA in line with our published FOI Policy Objectives. This will include consideration of the position of various bodies which may influence or work in partnership with Scottish public authorities. This will include further consideration of the position of COSLA.
I have provided the only further relevant document not already provided in response to parts 1 and 2. This consists of an extract from our FOI Unit Policy Commitments Tracker, which is an internal planning document. The document mentions a number of bodies. It may be helpful to note that one of these bodies, Zero Waste Scotland, has in fact now been made subject to FOISA by provisions within the Circular Economy (Scotland) Act 2024 (see: Information requests | Zero Waste Scotland). Another, the Law Society of Scotland, will be made subject to FOISA for certain of its functions following the commencement of relevant provisions within the Regulation of Legal Services (Scotland) Act 2025. I should also highlight that the Gantt chart included within the document is out of date, and does not reflect the approach currently being taken.
About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.
Contact
Please quote the FOI reference
Central Correspondence Unit
Email: contactus@gov.scot
Phone: 0300 244 4000
The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG