Freedom of Information
The Freedom of Information (Scotland) Act 2002 (the Act) provides significant and important rights allowing access to recorded information. The Act came into force on 1 January 2005 and provides a statutory right of access to information held by Scottish public authorities. These include, for example, the Scottish Government, the Scottish Parliament, local authorities, schools, colleges, NHS Scotland and the police. The Act also requires the proactive publication of certain information. Compliance with the Act is promoted and enforced by the Scottish Information Commissioner.
Scottish Government's approach
The Scottish Government fully supports freedom of information, seeing it as an essential part of open democratic government and responsive public services. Indeed this support has been expressly set out as one of the guiding principles of the Scottish Government's approach to freedom of information available at http://www.scotland.gov.uk/About/FOI/6principles/Q/EditMode/on/ForceUpdate/on.
Coverage of the Freedom of Information (Scotland) Act 2002
Another of the principles is the Scottish Government operates within the Act rather than propose significant changes to it, but adjusts the regime where it is necessary and sensible to do so. It is necessary to ensure the Act works well for authorities and the public seeking to access information.
This Government is committed to considering whether it is appropriate to extend the coverage of the Act. It can be extended to bodies that appear to Scottish Ministers to exercise functions of a public nature; or who are providing, under contract with a Scottish public authority, any services whose provision is a function of that public authority. Such extension can be done by making an order under section 5 of the Act which allows such bodies to be designated as public authorities solely for the purposes of the Act in respect of the functions or services specified. Not all of the work carried out by a body would necessarily be covered by a section 5 order. The Scottish Government must consult with the relevant body (or representative body) before designation can take place.
Exploratory discussions regarding possible extension
In particular the Scottish Government proposes to undertake exploratory discussions with interested parties on whether the following categories of bodies should be brought within the scope of the Act in relation to certain functions and services they exercise or provide:
- Registered social landlords;
- Contractors who provide public services that are a function of a public authority (e.g. contractors providing prison services); and
- Local authority trusts or bodies set up by local authorities (e.g. bodies set up by local authorities as limited companies to run leisure facilities).
Concerns about lack of coverage have consistently been raised with the Scottish Government in respect of these particular categories - such concerns primarily focusing on the public having lost rights to access information which they previously had under the Act. Such a loss may have arisen because of changes in the way public services are delivered - for instance local authorities (who are covered under the Act) contracting out services traditionally delivered directly by them.
The Minister for Parliamentary Business will shortly publicly commit to undertaking these discussions. We would re-iterate that these discussions are simply exploratory, and do not constitute the formal consultation required by the Act. Annex A to this letter outlines the way in which it is envisaged that these discussions will take place. The Government wishes to explore all of the relevant issues, both for and against extending coverage in relation to these three groups. The Minister for Parliamentary Business has previously addressed this issue saying "I understand fully the concerns about accountability and access to information held by organisations not covered. When you scratch the surface of these concerns, however, the issues immediately become more complex than at first sight they may seem." The Minister has also fully recognised that there is a need to consider the specific and unique circumstances of various organisations, and also the need to balance a number of competing arguments.
Your involvement
The main purpose of this letter is to alert you to this matter and the next steps given we have identified that you may have an interest. We very much hope you will wish to be involved in, and contribute to, the exploratory discussions. Annex B lists the organisations we have written to in similar terms. This list is not meant to be either exhaustive or conclusive and so should you be aware of others you consider may wish to be involved then please let us know.
We will be in touch again as regards the process and your engagement but in the meantime let us know -
- your e mail address (if possible) if you are the correct contact;
- the name and contact details (including e mail address if possible) of the key contact within your organisation should it be someone other than yourself ; or
- if you do not consider you have an interest at all.
If, in the interim, you have any questions on the terms of this letter, please do not hesitate to contact Alicia McKay or Katie Wood at foi@scotland.gsi.gov.uk
ANNEX A
Outline of next steps
- Exploratory discussions around extending coverage directly with the bodies indicated, with relevant Scottish public authorities and other stakeholders. In the main, this will be done through a discussion document issued by us which will seek the views of stakeholders on key issues. We will also meet or correspond with particular stakeholders, as necessary, to help clarify relevant issues.
- The discussion document will aim to explore the kinds of factors that might be relevant in determining, from both a legal and a policy perspective, whether to extend coverage. It will also seek discussion on how those factors might apply and impact on the bodies considered. For example, it will explore the advantages of openness as well as any potential negative impacts because any extension of coverage needs to be measured and proportionate.
- The responses will assist in informing the Scottish Government's thinking on whether it is minded to make a section 5 order covering these bodies and if so the scope of the order.
- If the Scottish Government is minded to make a section 5 order, it will formally consult the bodies proposed for designation (or their representative bodies) in accordance with the provisions in the Act.
ANNEX B
Registered Social Landlords
Scottish Housing Regulator
Tenants Regulatory Advisory Group
Tenants Assessors
Scottish Federation of Housing Associations
Chartered Institutue of Housing in Scotland
Glasgow and West of Scotland Forum of Housing Associations
CoSLA
Council of Mortgage Lenders
Employers in Voluntary Housing
Office of the Scottish Charity Regulator
Scottish Housing Associations Recruitment and Education
The Care Commission
The Housing Corporation
Tenant Involvement in Grampian, Higlands and Rural Areas
Tenants Information Service
Tenants Participation Advisory Service
All registered Social Landords (RSL's)
Registered Tenant Organisations whose Landlord is an RSL
Regional Network Committee's
Local Authority Chief Executives
Contractors who provide public services that area a function of a public authority
Confederation of Business Industry Scotland
Federation of Small Businesses Scotland
Scottish Chambers of Commerce
Scottish Council for Development and Industry
Institute of Directors Scotland
Scottish Trades Union Congress
Scottish Prison Service, HMP Kilmarnock
Scottish Council for Voluntary Organisations
Community Care Providers Scotland
PPP Forum
Association of Directors of Education in Scotland
Society of Local Authority Chief Executives
AMEC
Balfour Beattie
Carillion Construction
Ogilvie Construction
Robertson Construction
International Project Finance Association
Local Authtority trust or other bodies set up by local authorities to run leisure facilities etc
Office of the Scottish Charities Regulator
Scottish Council for Voluntary Organisations
Others
Scottish Public Information Forum
Citizens Advice
Which?
Scottish Information Commissioner
Ministry of Justice
Welsh Assembly Government
Northern Ireland Executive
Scotland Office
Scottish Health Boards