1. The Scottish Government has a longstanding commitment to keep the Freedom of Information (Scotland) Act 2002 (FOISA) under review, and this includes considering extending its coverage where it is appropriate to do so. In the Programme for Government 2018-19, the Government committed to consult on proposals to extend FOISA, for example to companies providing services on behalf of the public sector.
2. This consultation asks for your views on further extending the coverage of FOISA, with a focus on those who provide services on behalf of the public sector.
The Freedom of Information (Scotland) Act 2002
3. FOISA came into force on 1 January 2005. It provides a statutory right of access to information held by Scottish public authorities. These include the Scottish Parliament and the Scottish Government to local authorities, NHS boards, higher and further education institutions, doctors and dentists, among others.
4. Requested information must be provided unless it is subject to one or more exemptions, as set out in FOISA. If a requester is dissatisfied with the response received to a request or does not receive a response, he or she can ask the authority to review its decision or handling of the request.
5. The Scottish Information Commissioner both promotes and enforces FOISA. Requesters who remain dissatisfied with the conclusions of an authority's review of their request can appeal to the Commissioner for a decision.
6. The Scottish Government's longstanding approach to freedom of information law is set out in its Six Principles of FOI. The second principle enshrines the incremental approach adopted by the Scottish Ministers towards reform of FOISA:
[The Scottish Government] operates within the Freedom of Information (Scotland) Act 2002 rather than proposing significant changes to it, but adjusts the regime where it is necessary and sensible to do so. The Act must operate well for both members of the public and Scottish public authorities. We will keep the Act under review by promoting good practice within existing frameworks and considering extending coverage.
7. As part of this principle, the Scottish Government keeps under review the coverage of FOISA.
Extending the coverage of FOISA
8. FOISA applies to persons, bodies and officeholders who fall within the definition of a Scottish public authority as set out in the legislation. Many Scottish public authorities are listed in schedule 1 to FOISA. Others are designated in subordinate legislation made by the Scottish Ministers under section 5 of FOISA. Finally, publicly-owned companies that meet the criteria in section 6 are also Scottish public authorities. The number of Scottish public authorities accordingly changes regularly as new authorities are created or dissolved, and as new publicly-owned companies are set up.
9. This consultation will help the Scottish Government to understand whether there is a need to extend FOISA to further entities through a new section 5 order. A section 5 order designates a person or body as a Scottish public authority for the purposes of FOISA.
10. This consultation is not looking at other ways of extending FOISA or wider changes to the legislation. Consultees may, however, wish to be aware that the Scottish Parliament's Public Audit and Post-legislative Scrutiny Committee is currently carrying out post-legislative scrutiny of FOISA and the Committee may explore these areas when it takes oral evidence in autumn 2019.
Who can be designated in a section 5 order?
11. A section 5 order can designate persons or bodies that:
(a) appear to the Scottish Ministers to exercise functions of a public nature; or
(b) provide, under a contract with a Scottish public authority, a service whose provision is a function of that authority.
12. It is not possible to designate a person or body if it could be added to schedule 1 instead (section 4 of FOISA explains who can be added to schedule 1) or if it is a public body or the holder of a public office.
13. In other words, designation under section 5 is for persons or bodies that are not themselves public, but either exercise functions of a public nature or have a contract with a Scottish public authority to provide a service which is a function of that authority.
Consequences of designation
14. A person or body which is designated as a Scottish public authority in a section 5 order becomes subject to FOISA. It must comply with the three principal duties of proactively publishing information, responding to requests for information, and providing advice and assistance to requesters.
15. However, the new authority is only subject to FOISA in a limited way. The section 5 order has to set out the functions of a public nature exercised by the authority or the services that it is providing under contract with a Scottish public authority. The new authority's duties under FOISA are limited to those functions and services – they do not apply to all of the information it holds.
16. The person or body would also automatically become subject to the requirements of the Environmental Information (Scotland) Regulations 2004 (EIRs), a parallel legislative regime for requesting environmental information.
17. The Scottish Ministers have made three previous section 5 orders in 2013, 2016 and 2019. The most recent order comes into force on 11 November 2019 and it extends coverage to registered social landlords and their subsidiaries. The earlier orders 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)
18. These previous extensions have largely focused on persons or bodies that appeared to the Scottish Government to be exercising functions of a public nature (with the exception of the designation of private prison contractors, who provide a service under a contract made with a Scottish public authority).
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