Freedom of Information (Scotland) Act 2002: report on exercise of section 5 power

Report on the use made by the Scottish Ministers of their powers under section 5 of the Freedom of Information (Scotland) Act 2002 to extend coverage of the FOI legislation between November 2019 and October 2021.

Exercise of the section 5 power

13. Section 7A(4) requires the Scottish Government to state whether the section 5 power has been exercised during the reporting period. Where it has not been used, we are also required to give the reason for leaving the power unexercised.

14. The Scottish Ministers have not made any orders using the section 5 power during the reporting period, for the following reasons:

15. In the third report, we noted that the main focus of the Scottish Government in that reporting period had been on extending the coverage of FOISA to registered social landlords (RSLs) and their subsidiaries. This is the largest extension of FOISA since the Act came into force in 2005, with almost 200 new organisations becoming subject to the legislation as a consequence. The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2019 came into force on 11 November 2019, shortly after the beginning of this reporting period.

16. With work on extending the coverage of FOISA to RSLs largely complete, between 30 August 2019 and 3 December 2019, the Scottish Government ran a public consultation seeking views on the future use of the section 5 power. The consultation had a focus on organisations which provide services under contract on behalf of Scottish public authorities but also considered the potential for extension to organisations which exercise functions of a public nature more broadly. On 6 March 2020, we published the analysis of that consultation.

17. Work in response to the consultation was temporarily suspended following the coronavirus outbreak. The impact of the coronavirus outbreak prevented us from making progress with this work, but it has now resumed and we shortly intend to produce a policy paper which will set out the Scottish Government's broad approach to the use of the power over the coming years.



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