The Scottish Government published a consultation document in December 2016, seeking views on whether the Freedom of Information (Scotland) Act 2002 (FOISA) should be extended to Scottish registered social landlords (RSLs). Consultation responses have now been received, 73 of which have been published.
Analysis of the responses
The overwhelming view (over 70% of published responses) is that FOISA should be extended to RSLs, with the majority (almost 60% of published responses) favouring extension from 1 April 2018. Indeed, 6 respondents suggested that FOISA ought to be extended earlier than April 2018.
The principal reasons favouring extension highlighted by respondents are:
RSLs undertake essential functions of a public nature, which are derived from statute and are publicly funded, and which would otherwise be performed by local authorities;
the transfer of housing stock from local authorities to RSLs has negatively impacted information rights, making it difficult for individuals to find out where information is available;
individuals have experienced difficulties in obtaining information from RSLs, particularly under the Environmental Information (Scotland) Regulations 2004 (EIRs);
the status quo gives rise to confusion and inconsistency in that RSLs are regarded as public bodies so far as the Scottish Public Services Ombudsman (SPSO) and the EIRs are concerned, but not for FOISA. The Scottish Social Housing Charter (SSHC) does not go sufficiently far in this regard in that it does not compel the disclosure of information in the form of an enforceable right of access, and does not provide for an independent regulator, such as the Scottish Information Commissioner (SIC);
extension is unlikely to yield additional burden for RSLs, as the processes and procedures are already in place to deal with requests for information. The additional administrative burden will be limited, from a financial perspective, by the cost cap of £600;
extension will give rise to more meaningful engagement with wider society, as researchers, third sector organisations and others with an interest in housing issues (aside from tenants) will have access to more information to facilitate greater involvement in social housing matters; and
non-RSL subsidiaries should also be covered because they hold relevant information, and failure to extend could result in functions being devolved to subsidiaries to prevent information being publicly available under FOISA.
The reasons put forward by respondents resisting extension are:
RSLs are open and transparent organisations by default that already act in accordance with the spirit of FOISA by proactively providing information on request, publishing it on their websites and within the annual report on the SSHC. Evidence does not indicate a general dissatisfaction amongst tenants in this respect;
extension will divert RSL resources away from their core functions towards dealing with FOISA requests from journalists and researchers. The costs associated with this will likely be absorbed by increasing rents;
those in favour of extension adopt an overly-simplistic view of RSL finance, most of which comes from private funding and rent income, and not public grant;
RSLs are already subject to significant levels of regulation by the Scottish Housing Regulator, the Office of the Scottish Charity Regulator (for charitable RSLs), the Care Inspectorate (for RSLs providing care services) and the SPSO (for complaints). Adding FOISA to this mix will further complicate the regulatory environment;
extension should not apply to non-RSL subsidiaries because they undertake commercial activities that are not of a public nature; and
it is inappropriate to classify RSLs as Scottish public authorities (SPAs) at a time when the Scottish Government is introducing legislation to define them as private bodies for the purposes of the National Accounts.
The Scottish Governmen