Public Law

The Scottish Government last week announced its intention to increase the number of bodies subject to the Freedom of Information (Scotland) Act 2002 (“FOISA”). The Government wants to extend FOISA to arm’s length bodies established by local authorities that provide cultural, sports and leisure activities to the public. It remains to be seen whether they will achieve their aim: long-in-the-tooth FOI practitioners will know the history of attempts by previous administrations in Scotland to expand the scope of FOI.

Currently FOISA applies to the list of organisations at Schedule 1 (as amended from time to time by section 4). The Scottish Ministers can also designate other bodies as a ‘Scottish public authority’ under section 5 of FOISA if they are neither already on Schedule 1 nor capable of being added to Schedule 1 by the section 4 power. Now that all sounds quite complicated, but in order to be designated a public authority the body must be exercising functions of a public nature or providing, under contract to an existing Scottish public authority, a service that is normally a function of that authority (so this covers contracting out to an arm’s length body).

There is a duty to consult the body in question before any designation is made. That duty is about to be extended by the Freedom of Information (Amendment) Scotland Bill to include “such other persons as they [the Scottish Ministers] consider appropriate.”

And don’t forget the Environmental Information (Scotland) Regulations, which already enable the recovery of environmental information from some organisations which appear on the face of it to be ‘private’ but which are involved in the delivery of public services or the exercise of public functions.

Niall McLean

Associate at Brodies LLP
Niall is a member of Brodies' market leading Government, Regulation and Competition practice. Niall gives both public and private sector clients advice in a broad range of areas including: corporate crime and investigations, governance, defamation and reputation management, public law and statutory interpretation.
Niall McLean