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 2017 and October 2019.

Exercise of the section 5 power

12. Section 7A(4) requires the Scottish Government to state whether the section 5 power has been exercised during the reporting period. Where it has been used, we are also required to explain how it has been exercised, and why.

13. Throughout the reporting period, the main focus of the Scottish Government has been on extending the coverage of FOISA to registered social landlords. This delivers a longstanding commitment given by the Minister in charge of the Freedom of Information (Scotland) Bill at Stage 3, in 2001.

14. In December 2016, we announced a consultation on extending FOISA to registered social landlords. We published an interim report on the outcome of that consultation in June 2017. It was followed in December 2017 by a further consultation on the terms of a draft order extending FOISA to registered social landlords and their subsidiaries. Our response to that consultation was published in February 2019.

15. The Scottish Ministers laid one draft order under section 5 before the Scottish Parliament, on 7 February 2019. The draft order was approved by the Parliament on 3 April 2019, and subsequently the order was made by the Scottish Ministers on 17 April 2019 as The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2019.

16. That order designates registered social landlords and their subsidiaries as Scottish public authorities for the purposes of FOISA. However, this applies only to information that they hold about certain of their functions as mentioned in the order. Those functions are activities in relation to housing services (with some exceptions) and the supply of information to the Scottish Housing Regulator about financial well-being and standards of governance. Further information about the order is available in its policy note.

17. The order comes into force on 11 November 2019. It is the third such order, with previous orders made in 2013 and 2016.

18. As with previous extensions, we will conduct an exercise one year after it comes into force to assess the results of extending the coverage of FOISA. This will involve inviting the new Scottish public authorities to comment on their experience of designation, both in terms of preparation and in relation to the practical impact.



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