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.

Other work undertaken during the reporting period

19. In the second section 5 report, laid before the Scottish Parliament in October 2017, we outlined our intention to assess options for further section 5 orders with the objective of ensuring coverage is robust and reflects changing patterns of public service delivery. In particular, we indicated that we would:

(a) explore whether certain organisations - or classes of organisation - delivering health and social care functions, but currently not subject to the Act, should be brought within scope of the legislation

(b) liaise with Audit Scotland for our joint interests in its project assessing the delivery of council services by arms-length external organisations (some of which were designated in the first section 5 order)

(c) engage with the third sector because third sector bodies can be publicly funded to exercise functions which may be considered to be of a public nature, or to provide services which are functions of an authority

20. In relation to the delivery of health and social care functions, officials have engaged with a range of internal and external stakeholders to build a clearer picture in relation to both health functions and social care functions that might be brought within the scope of FOISA. It has emerged that many organisations delivering these functions would only be eligible for partial designation under FOISA (because they have both public and private functions). It has also emerged that their public functions tend to arise via contracts with Health Boards or local authorities.

21. We have liaised with Audit Scotland as indicated. We do not consider that this has identified any obvious weaknesses in the current designation of certain arms-length external organisations (as contained in The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2013). We have also observed that there may be signs that some local authorities are bringing services back in-house from arms-length external organisations, restoring information rights in the process.

22. In relation to third sector bodies, our initial discussions have revealed a very diverse landscape across Scotland. Not all third sector bodies receive public funds, and some may receive them only in relation to a proportion of their work or for a limited period. If a charity were designated on the basis that it received public funding, and then its funding sources changed, we consider that this would give rise to difficult questions, particularly if the source of funding changed on a semi-regular or cyclical basis. Much of the interest around third sector organisations appears to be where they deliver services on behalf of Scottish public authorities.

23. On 20 June 2018, the Scottish Parliament agreed (among other things) that "…the Scottish Government should consult on proposals to further extend coverage of Scotland's freedom of information legislation, for example, to companies providing services on behalf of the public sector."

24. The Government subsequently included a commitment in its Programme for Government 2018-19 to consult on proposals to extend FOISA, for example to companies providing services on behalf of the public sector, and on 30 August 2019, we announced a consultation on extending the coverage of FOISA, focusing on organisations that provide services on behalf of the public sector. This consultation closes on 22 November 2019. We consider that this consultation not only responds to the Parliament's motion, but also addresses (at least in part) our stated intention to investigate further extending coverage to those involved in the delivery of health and social care function and third sector bodies.



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