The Scottish Government has published a consultation document today, seeking views on whether the Freedom of Information (Scotland) Act 2002 (FOISA) should be extended to Scottish registered social landlords (RSLs). If the responses to the consultation are positive, FOISA will apply to RSLs from 1 April 2018.
What is FOISA?
FOISA provides a right of access to information held by Scottish public authorities (SPAs) on request. The information must be disclosed in response to requests, unless one or more of the FOISA exemptions apply. The right to request access to information held by SPAs – also known as the “right to know” – has existed in Scotland since 1 January 2005.
Who can FOISA be extended to?
The Scottish Ministers can designate a body as an SPA for FOISA purposes if the body carries out public functions or if it provides services under a contract with an SPA which are otherwise the SPA’s functions. This is done by making an order under Section 5 of FOISA.
However, FOISA 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 SPAs.
The Environmental Information (Scotland) Regulations ("EIRs"), which provide access to environmental information held by SPAs on request, apply automatically to FOISA designated bodies. In the case of RSLs, the Scottish Information Commissioner determined that RSLs were SPAs for the purposes of the EIRs in June 2014, and they have been complying with requests made under that legislation since.
Has FOISA been extended before?
An order extending FOISA to RSLs would be the third time that FOISA has been extended in its 11-year history.
The first 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.
The second time was in September 2016, when it was extended to grant-aided schools, independent special schools, private prison contractors, children’s secure accommodation providers and Scottish Health Innovations Limited.