The Freedom of Information (Scotland) Act 2002 (“FOISA”) has been extended to grant-aided schools, independent special schools, private prison contractors, children’s secure accommodation providers and Scottish Health Innovations Limited. The “right to know” can now be exercised against these bodies.
Who can FOISA be extended to?
The Scottish Ministers can designate a body as a Scottish public authority for FOISA if the body carries out public functions or if it provides services under a contract with a Scottish public authority which are otherwise the authority’s functions.
However, the right to know does not apply to all information held by the designated bodies. It only applies to information held by the bodies in connection with the specified public functions or services for which they have been designated as Scottish public authorities.
The Environmental Information (Scotland) Regulations ("EIRs"), which provide access to environmental information held by Scottish public authorities on request, apply automatically to FOISA designated bodies.
Has FOISA been extended before?
Yes, this is the second time that FOISA has been extended in its eleven-year history. The last time was in April 2014, when FOISA was extended to arms-length trusts set up and (wholly or partly) financed by one or more local authorities to develop and / or deliver sporting, cultural and leisure facilities and activities on behalf of the authorities.
How will the schools respond to requests during school holidays?
Responses to the consultation on the present extension highlighted administrative and practical issues for the schools when responding to FOISA requests during school holiday periods, particularly because requests and requests for review must be responded to within 20 working days of receipt and staff may be absent from the schools.
To address this, separate Regulations will come into force in December 2016 for the designated schools to amend the time for compliance with requests and requests for review so that non-school days are discounted when determining response deadlines. Requests must still be responded to within 20 “school” days of receipt.
The Scottish Government will also revise the Section 60 Code of Practice to provide that if there are staff within the schools during school holiday periods with the necessary skills, knowledge and level of seniority, then they should respond to requests for information and requests for review within the standard statutory deadline, even if the schools could rely on the Regulations’ extended response deadline.
What about the EIRs?
The extended response deadline will not apply to requests made under the EIRs, which must be responded to within 20 working days of receipt, even during school holiday periods.
Registered social landlords (“RSLs”) are firmly on the radar and will most likely be subject to extension in the near future.
The Scottish Social Housing Charter, which sets the standards and outcomes that RSLs should be achieving for their service users, is currently the subject of consultation, with a revised Charter due by 1 April 2017. The published responses to the Charter consultation indicate that RSLs are performing well in providing information and making it accessible to service users under the Charter. The Scottish Government has confirmed that it will consult later this year on extension of FOISA to RSLs in tandem with its review of the Charter.
RSLs have been subject to the EIRs since June 2014, which provide for access to environmental information held by RSLs, including: regeneration projects; building and repair programmes and works; public procurement-related information; stock condition surveys; and photographs.
Separate from the consultation has been a public petition presented by FOI campaigners, calling on the Scottish Government to extend FOISA to RSLs. The petition was recently referred to the Infrastructure and Capital Investment Committee and remains open for consideration during the next Parliamentary session.
There are currently no proposals in England, Wales and Northern Ireland to extend the equivalent UK Freedom of Information Act 2000 (“FOIA”). To date, only the Association of Chief Police Officers, the Financial Services Ombudsman Service, UCAS and Network Rail have been designated as public authorities for FOIA. The UK Government established a Commission on FOIA in July 2015, which reviewed FOIA’s operation and how it could be improved. The Commission’s call for evidence did not seek views on extension but it did form one of the areas on which the Commission “felt unable to make recommendations”.