FOI: coming soon to Scottish housing associations

12.02.19

Last week, the Scottish Government published its long-awaited final report in its most recent consultation, commenced in December 2017, on extending the Freedom of Information (Scotland) Act 2002 (FOISA) to Scottish housing associations (otherwise known as registered social landlords or RSLs). Appended to the report is a copy of the draft order to be laid before the Scottish Parliament, which confirms the Scottish Government’s plan for the scope of the extension.  


Background


Bringing RSLs within the scope of FOISA has been on the cards for a long time. It was originally canvassed during the passage of FOISA through the Scottish Parliament as long ago as 2002, and the Scottish Government first consulted on the proposal in December 2016 with the stated intention of using section 5 of FOISA to place RSL tenants on an equal footing with local authority tenants for the purposes of access to information. We wrote about that consultation exercise at the time. That original consultation paper indicated an implementation date of 1 April 2018, which was subsequently pushed back to 1 April 2019. The final report acknowledges that implementation by 1 April 2019 is no longer realistic and so, subject to Parliamentary approval, the draft order provides for an implementation date of 11 November 2019


Scope


The draft order provides that not all the activities of RSLs will be within the scope of FOISA. Instead, FOISA will apply to activities in relation to housing services (as defined in section 165 of the Housing (Scotland) Act 2010), subject to the exclusion of factoring services and to the management of housing accommodation being within scope only where the RSL has granted a Scottish secure tenancy or short Scottish secure tenancy. This scope is intended to make clear not only that the provision of accommodation for private renting or at mid-market rents will be excluded from FOISA, but also that other services provided by RSLs, for example social care, are not covered. 


However, the extension will be wider than initially consulted upon in two important respects: 

  • The extension will apply both to RSLs and to their subsidiaries, to the extent a subsidiary performs one of the covered activities. This development responds to a concern, raised by the Scottish Information Commissioner during the consultation, that excluding subsidiaries would create an inconsistency in access rights depending on how functions were allocated within an RSL’s group. 
  • Also in response to a Scottish Information Commissioner concern, the draft order has been expanded to bring information in respect of an RSLs’ financial well-being and governance arrangements within the scope of FOISA. The order therefore applies to the RSL’s statutory function of providing information to the Scottish Housing Regulator (“SHR”) in relation to those matters. Requesters will therefore be able to request that information direct from the RSL rather than having to wait until they can request it from from the SHR.

While RSLs’ factoring services are excluded from the scope of the order, the Government has noted that certain aspects of factoring services more broadly (whether provided by private factors or the RSL sector) might be considered to be functions of a public nature, and that it may consider consulting on adding factoring services to FOISA in the future. This will therefore be an area to watch, though given how long it has taken to bring RSLs within the scope of FOISA any further additions relating to factoring could be some time away.


Environmental Information


Scotland’s RSLs are not complete strangers to information law, as they are already subject to the right of access to environmental information set out in the Environmental Information (Scotland) Regulations 2004 (EIRs).  


Both the Scottish and the UK Information Commissioner have previously found housing associations to be public authorities for the purposes of the EIRs (and their UK equivalent). In Scotland the previous decisions rested on the application of regulation 2(2)(d), namely that the association is under the control of another public body (the SHR), which rationale may fall away when the SHR’s powers over RSLs are reduced (under section 8 of the Housing (Amendment) (Scotland) Act 2018) in order to let the ONS reclassify them to the private sector. However, in a relatively recent decision, the UK Information Commissioner confirmed that a housing association in London was covered by the UK EIRs on the basis that it was a “body that carries out functions of public administration” under regulation 2(2)(c). This followed the approach previously taken in a number of Northern Irish cases. These EIR decisions not only confirm that RSLs are and will remain subject to the EIRs, but perhaps also reinforce the Scottish Government’s rationale for adding RSLs to FOISA.


Getting ready


The application of FOISA will place significant new obligations and resourcing requirements on RSLs. The later implementation date of November later this year will give RSLs some time to implement new policies and procedures to ensure they are able to comply with the new regime, but they will want to start that process (if they haven’t already) sooner rather than later. 


We will be running a FOISA-themed event for RSLs as part of our spring seminar series. The details will be confirmed shortly, so if you are interested please keep an eye on the seminars section of our website, or alternatively let us know if you want to receive the invite when it is issued by signing up through our prefrence manager, or emailing us


For more information on FOISA and its forthcoming application to RSLs please contact Lisa Kinroy, Charles Livingstone, Jackie McGuire or your usual Brodies contact.