Public Law

We have been keeping a close eye on the Scottish Government’s proposals for extending the scope of the Freedom of Information (Scotland) Act 2002, from its beginnings in the Scottish Information Commissioner’s 10th anniversary special report in February last year, to launching its consultation in July and a ‘spin-off’ consultation on registered social landlords (“RSLs) at the end of October. The journey looks to now be nearing its end with the publication of the Scottish Government’s response to its consultation, which you can read here.

A picture of a magnifying glass zoming in over a map of ScotlandThe Scottish Government has confirmed that it remains in favour of extending FOISA (as were most of the respondents to the consultation) to include the following:

  • Contractors who run privately managed prisons;
  • Providers of secure accommodation for children;
  • Grant-aided schools; and
  • Independent special schools.

The next step is for Ministers to lay a Section 5 order before the Scottish Parliament extending the coverage of FOISA to those bodies. The original plan was for the order to come into force on 1 April 2016 but, as a result of concerns expressed about that short timescale, the Scottish Government has now agreed to delay that to 1 September 2016.

In addition to the above bodies, the consultation also contained a question about bodies that could be included in future orders, including RSLs. The Scottish Government previously stated that it was unpersuaded on the merits of extending FOISA to RSLs but they now appear to have changed their mind on that, with part 8 of the consultation response stating that “there are persuasive arguments favouring extension of coverage of FOISA to registered social landlords”. Almost all the housing associations who responded opposed the move, while all the tenant organisations supported it. They will all have the opportunity to submit further views when a formal consultation on extending FOISA to RSLs is carried out this year, in tandem with the review of the Scottish Social Housing Charter.

The consultation also asked for opinions as to which other organisations should be subject to FOISA, and suggestions (from “a relatively small number of respondents”) included:

  • Outsourced health and social care providers;
  • Arm’s length external organisations;
  • Public transport companies;
  • Third sector organisations;
  • Energy companies;
  • Port Authorities;
  • Community Councils; and
  • Hub companies (Hubcos).

The Scottish Government’s response to these suggestions is that they intend to maintain an incremental approach to extending FOISA. They therefore plan to engage with relevant stakeholders and bring forward further extension proposals in due course, keeping in mind the factors identified in their recent report on extension of coverage (see pages 7 and 8 of that report in particular).

If you will be affected by the extension of FOISA, or would like to discuss any other aspect of FOI, please feel free to get in touch with your usual Brodies contact or a member of the Public Law team.

Douglas Waddell

Senior Solicitor at Brodies LLP
Douglas is a senior solicitor in Brodies Government, Regulation and Competition team. He has experience advising on a wide range of public law and commercial issues such as the powers and duties of local government, statutory interpretation, planning transactions, freedom of information and social housing litigation.
Douglas Waddell

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