Consultant and solicitor Daradjeet Jagpal responds to the Scottish Government consultation on extending Freedom of Information (FOI) legislation to RSLs in Scotland.
The Scottish Government has published a consultation document, 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.
What is the Scottish Government’s justification for extending FOISA to RSLs?
In the consultation document, the Scottish Government adopts a “factor-based” approach to determining whether RSLs undertake functions of a public nature and should therefore be designated as SPAs for FOISA purposes.
The Scottish Government lists the following factors:
- the extent to which RSLs’ functions derive from statute: the Scottish Government considers that RSLs’ functions are underpinned by statute in the form of the Housing (Scotland) Act 2010, which (broadly) provides that RSLs must be established for the purposes of the provision, construction, improvement or management of housing. The Scottish Government regards these as being functions of a public nature. In addition, the Scottish Government notes that, in terms of accountability to and regulation by the Scottish Housing Regulator (SHR), both RSLs and local authorities are on an equal footing, which lends further support to the public nature of RSLs’ functions;
- the extent to which RSLs are publicly funded: the Scottish Government highlights that RSLs receive considerable amounts of public funding to be used directly in fulfilling their functions;
- whether RSLs’ functions are of a nature that they would need to be performed by an SPA if RSLs did not perform them: the Scottish Government considers that RSLs provide a “key public service” and are heavily relied upon by the state and society to play a central role in social housing provision using public funding;
- the extent to which RSLs are subject to oversight, regulation or control by the state: the Scottish Government notes that RSLs are subject to considerable regulation and oversight by the SHR, who: keeps a register of RSLs; approves which organisations can be listed on the SHR’s register and which are to be removed; monitors, assesses and reports on RSLs’ performance of their functions, governance standards and financial wellbeing and can intervene, where necessary; and receives reports from RSLs on their compliance with the Scottish Social Housing Charter (Charter). Aside from the SHR, the Scottish Government adds that RSLs can be subject to regulation by the Office of the Scottish Charity Regulator (in the case of charitable RSLs) and the Care Inspectorate (where RSLs provide support services); and
- whether extension would restore access to information in situations where it formerly existed: while information can be obtained from RSLs through a variety of routes, such as the Charter and the EIRs, the Scottish Government highlights that these only apply to RSLs’ service users and to environmental information, respectively, and there are “no current information rights…as extensive as those…contained in Scotland’s Freedom of Information legislation”. In addition, some local authority to RSL housing stock transfers have taken place after FOISA came into effect in January 2005. The consequence of this was a removal of FOISA rights. The Scottish Government considers that RSL FOISA extension would restore these rights.
Taking all these factors into account, the Scottish Government believes that “RSLs should be brought within scope of Scotland’s Freedom of Information legislation”. In its view, extension would put tenants of local authority and RSL social housing on an equal footing so far as access to information is concerned and will improve openness and transparency.
What does this mean for RSLs?
In previous consultations on the matter, it was suggested that FOISA would only be extended to larger RSLs on the premise that they have the resources to implement the processes and procedures necessary to handle requests. The Scottish Government has decided to dispense with this approach and has instead proposed to extend FOISA to all RSLs, irrespective of their size, on the basis that to do otherwise would be arbitrary and restrict access rights.
The Scottish Government does not consider that extension would be likely to impose a burden on RSLs on the basis that: RSLs are already familiar with providing access to information in terms of the Charter and under the EIRs; guidance and support is available from the Scottish Information Commissioner; and RSLs already have knowledge of FOISA from their dealings with SPAs when the latter receive requests for information relating to the former.
But FOISA extension to RSLs involves more than this. RSLs will need to train staff to recognise FOISA requests, to provide advice and assistance to prospective requesters and to direct requests to the appropriate person internally. Request handling procedures, together with a review process, will need to be implemented. Records will require to be held in a manner that facilitates retrieval and access and allows an RSL to respond within the 20 working day FOISA limit. Publication schemes will need to be devised to outline what information is held by an RSL and how it can be accessed. SPAs had almost 3 years to do this when FOISA first came into force; RSLs will only have a year.
While previous consultations have not resulted in FOISA being extended to RSLs, given the backdrop to the current consultation, which closes on 23 February 2017, it is highly likely that FOISA will finally be extended in 2018. RSLs – it is time to get your FOISA houses in order.
- Daradjeet Jagpal is director of Information Law Solutions, an independent consultancy providing advisory, training and audit services in Data Protection and Freedom of Information.