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

Exercise of the section 5 power

11. 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.

2.1 Scottish Government position on extension of FOISA.

12. Over the course of the reporting period, the Scottish Government has initiated work to consult on a future section 5 order to extend the scope of FOISA to private and third sector providers of care home and ‘care at home’ services.

13. If progressed, this will represent the most substantial extension of FOISA to date. We have therefore undertaken extensive engagement with a broad range of stakeholders across the care sector and beyond. These stakeholders have played a pivotal role in informing and shaping the government’s approach to the consultation.

14. As part of this work a Consultation Advisory Group bringing together key stakeholders was established in February 2025 (see: Care sector - proposed Freedom of Information extension: Consultation Advisory Group - gov.scot).

15. The consultation on the proposed extension is expected to be launched in the coming weeks.

16. The Scottish Government has also set out a broader policy objective to develop and set out a clear, structured and consistent approach to the wider use of the section 5 extension power going forward. The Scottish Government is considering its approach and will set out its position in due course.

17. In view of these ongoing work streams the Scottish Government has not exercised the section 5 power within the reporting period. However, as noted in the following section, the Scottish Government has taken other legislative actions during the period to extend coverage of the law to further organisations.