Freedom of Information coverage extension: consultation

Consulation on whether there is a need to extend the Freedom of Information (Scotland) Act 2002 (FOISA) to further entities through a new section 5 order.

Future orders

40. Previous consultations have focused on identifying persons or bodies that appear to the Scottish Ministers to exercise functions of a public nature. While the principal focus of this consultation is to identify candidates for designation who provide, under a contract with a Scottish public authority, a service whose provision is a function of that authority, the Scottish Government remains committed in the future to designating persons and bodies that appear to exercise functions of a public nature.

41. FOISA does not define "functions of a public nature" or set out criteria that the Scottish Ministers should apply in deciding whether a given function appears to be of a public nature. The Scottish Government considers that a range of factors can be used in determining whether an person or body would generally be recognised as exercising functions of a public nature. Accordingly, in previous consultations they have adopted a factor-based approach.

42. We consider these factors to include:

(a) 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;

(b) the extent of public funding of the activity;

(c) 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;

(d) whether the body exercises extensive or monopolistic powers;

(e) the extent to which the body is subject to state regulation, oversight or control.

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

(a) whether the public have lost rights to access information under the Act as a result of outsourcing of how public services are delivered;

(b) whether coverage would impose a significant administrative burden that may be considered to have a disproportionate business impact;

(c) 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.

44. We note that broadly similar factors have also been identified by the Scottish Information Commissioner's Special Report on coverage published in January 2015[6].

Question 7

Do you have any comments on the types of person, body or organisation – or on the functions of a public nature – which should be considered as future candidates when further extending the coverage of FOISA?

It would be helpful if you could set out the key factors that you consider favour the extension of coverage in the way that you propose.



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