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

2. 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.

2.1 Scottish Government position on extension of FOISA

15. Over the course of the reporting period the Scottish Government has developed and run its recent consultation on Access to Information Rights in Scotland. This has considered coverage of the legislation as a central issue – including the future use of the Scottish Ministers’ power under section 5 to extend the legislation to further entities.^[1]

16. The Scottish Government will set out its response to that consultation soon. We have delayed bringing forward proposals for the future use of the section 5 power until we have responded formally to the consultation.

17. The Scottish Government is considering how to respond to calls for extension of coverage of FOISA in the context of that wider work and will set out its next steps in due course.

18. Whilst there has not been an order made using the section 5 power within the reporting period, the Scottish Government has nevertheless acted to extend coverage of FOISA in significant ways, which directly address outcomes from the analysis of responses to our 2019 consultation on extension.^[2]

19. Both ScotRail Trains and Caledonian Sleeper are now provided within the public sector, by an arm’s length company owned and controlled by the Scottish Government. They are therefore both fully subject to FOISA. This amounts to a substantial extension of access to information rights in relation to a key service and directly addresses the Scottish Information Commissioner’s recommendation that FOI should be extended to transport services provided on behalf of Scottish public authorities.

20. The Scottish Government is also proposing to extend access to information rights in relation to legal services regulation in the Regulation of Legal Services (Scotland) Bill, currently before the Scottish Parliament. The Bill proposes to make legal services regulators designated as ‘category 1’ by that Bill subject to FOISA in relation to regulatory functions, including the Law Society of Scotland.