Access to information rights consultation: response

2. Agility of the regime - maintaining and strengthening access to information rights in the context of varied models of service delivery

2.1 Coverage of legislation

8. The most fundamental issue considered in the first section of the consultation was the Committee's concern that coverage of the legislation has not kept pace with changes in the nature of public service delivery. Respondents were asked a number of questions intended to draw out the extent to which they shared the Committee's concern about this, and how they perceived the nature and extent of any issues in this space. Their views were sought on a number of approaches to tackling this issue:

• Providing greater assurance about the future use by the Scottish Government of its existing power under section 5 of FOISA to extend coverage of the legislation to further entities
• Providing greater clarity in guidance regarding the FOISA status of information held by contractors to Scottish public authorities.
• The Committee's proposal to introduce some form of 'gateway clause' within the primary legislation to automatically make bodies subject to FOISA based on their fulfilment of particular criteria (e.g. delivering public services, receiving public money)
• Broadening the section 5 power within the primary legislation to make it easier for the Scottish Ministers to use
• Providing greater clarity within the primary legislation regarding the FOISA status of information held by contractors.

Views of respondents

9. The consultation analysis noted a clear divergence between respondents representing the perspectives of Scottish public authorities and those representing civil society and the third sector.

10. Respondents representing the perspectives of Scottish public authorities were generally more likely to consider that the law as it stood was sufficient to ensure that information about services – including those delivered by private and third sector providers under contract – was accessible, whilst civil society and third sector respondents were more doubtful about this. The Scottish Information Commissioner also expressed scepticism about the sufficiency of the existing statutory framework.

11. There was a widely held view among respondents that greater assurance about the Scottish Government's future use of its power under section 5 of FOISA, to extend the legislation to further entities, would be welcome.

12. There was also wide support for greater clarity in guidance about the FOISA status of information held by external contractors – whether in relation to the delivery of 'public' or 'ancillary' services.

13. Views were more varied in relation to proposed changes to primary legislation to address issues around coverage of the legislation. Civil society and third sector respondents were generally more persuaded of the case for reform to make the primary legislation more agile, in terms of its ability to ensure the 'right' organisations are covered with Scottish public authorities expressing more caution. Some third sector organisations also expressed concern about the impact and proportionality of extension of FOISA to third sector service providers.

14. The proposal for a 'Gateway Clause' to introduce a greater component of automaticity in coverage was supported by a significant minority of respondents, representing a diverse range of organisations. There were divided views about whether there should be exceptions for small and medium-sized enterprises (SMEs) and/or third sector providers from any such measure.

15. There was majority support for broadening the section 5 power to enable extension of FOISA to a wider range of bodies. There was a roughly equal split of views on whether a 'clearer legislative steer' was required in relation to the FOISA status of information held by contractors – whether in relation to 'public' or 'ancillary' services.

16. The Scottish Information Commissioner made a specific proposal for legislative reform, in terms of a new power for the Scottish Parliament to make revisions to Schedule 1 of FOISA and a requirement for the Parliament to periodically review coverage of the legislation.

Scottish Government response

17. The Scottish Government recognises the concern of the Committee, the Scottish Information Commissioner and various other respondents to the consultation to ensure that coverage of the legislation remains robust and up to date. However, we do not consider that changes in primary legislation are the best way to address such concerns.

18. Rather, we consider that these concerns can be better addressed by:

• Adopting a clear, structured and consistent approach to the future use of Scottish Ministers power under section 5 to extend FOISA to further entities
• A comprehensive review of Schedule 1 of FOISA to ensure it includes all Scottish public authorities in terms of the Scotland Act 1998, and is kept updated
• Revising the Code of Practice on the Discharge of Functions by Scottish public authorities under FOISA and the EIRs (Section 60 Code), to provide fuller guidance to Scottish public authorities on handling requests about services delivered by outsourcing partners

Scottish Government commitments

19. The Scottish Government will:

• Develop and set out a clearer, more structured and consistent approach to the future use of the section 5 power.

20. To develop the approach the Scottish Government will engage further with civil society, local government, Scottish public authorities and the private and third sector – including organisations representing SMEs. The approach will take the Scottish Government's established 'factors based approach' as its starting point^[3], but will seek to build around this a clear process and approach for identifying and considering potential candidates for extension. We will work in partnership with the Scottish Information Commissioner as we develop the approach.

• Consult on extension of FOISA to private and third sector providers of care home and 'care at home' services, following passage of the National Care Service Bill.

21. The issue of extension of FOISA to providers of social care services has been the subject of particular focus both in relation to the consultation process and in relation to the wider reform of social care which will be enabled by the National Care Service (Scotland) Bill currently before the Scottish Parliament. The Scottish Government recognises that there are clear arguments for extending FOISA to private and third sector providers of care services.

22. The current reform of social care recognises social care as a key public service, and makes a person centred and human rights based approach central to the delivery of care. The extension of access to information rights within the sector would seem consistent with that ethos.

23. However, there is also a clear need to work with and consult organisations working in the sector and to take account of the experiences of people accessing social care support, their families and support networks and the social care workforce. This will be crucial in order to ensure that any future section 5 order to extend FOISA in the sector takes place on a well considered basis, results in a genuine extension of access to information rights for the public and takes account of the regulatory impact on providers.

24. A full public consultation on a proposed section 5 order will provide the appropriate framework for that engagement. This will take place after the National Care Service (Scotland) Bill has become law. This approach is also consistent with the Scottish Government's wider commitment to co-design of all aspects of the National Care Service.

• Undertake a comprehensive review of Schedule 1 of FOISA

25. This work will be carried forward in tandem with the work on section 5. It will seek input from across government and the wider public sector in Scotland to ensure all organisations which meet the criteria to be regarded as a Scottish public authority with mixed functions or no reserved functions, are listed within Schedule 1 of FOISA.

• Revise the Section 60 Code of Practice to provide fuller guidance on the handling of requests about services delivered by outsourcing partners

26. This work will be undertaken as part of a wider review of the Section 60 Code, to consider updates in light of outcomes from this consultation process. The Scottish Government will work in close partnership with the Scottish Information Commissioner on the revision of the Code. There is a statutory requirement for the Scottish Government to consult the Scottish Information Commissioner on any revisions to the Code. We will also engage with partners across civil society, the third, private and public sectors.

27. Any update to the Code will not negate the responsibility of each Scottish public authority to determine the action it considers necessary to comply with its statutory obligations under FOISA, under the oversight of the Commissioner's office.

2.2 Confidentiality clauses

28. The agility section of the consultation also considered the Committee's suggestion that there should be a statutory prohibition on reliance on confidentiality clauses between Scottish public authorities and their contractors – similar to provisions within Irish FOI legislation. This had been suggested to the Committee in evidence from the Scottish Information Commissioner.

Views of respondents

29. Relatively few respondents to the consultation had direct experience of 'confidentiality clauses' affecting the release of information. Views were divided on whether the legislation required to be amended to prevent reliance on such clauses.

Scottish Government response

30. The Scottish Government is not persuaded that the case has been made for any amendment to legislation in this area. The use of confidentiality clauses in public contracts is rare. Wherever such a clause is used, it is likely to be justified by appeal to specific sensitivities inherent to the particular context of the agreement. Ultimately, any application of section 36 of FOISA which depends on the legal effect of such a contract remains subject to the oversight of the Scottish Information Commissioner and the courts.

2.3 Structure of section 6 of FOISA

31. Finally, the 'agility' section also considered the structure of section 6 of FOISA as it affects the way a 'publicly-owned company' is defined by the legislation. The Scottish Government has acknowledged that the effect of the current provision appears to be that companies wholly-owned by a combination of Scottish public authorities are not included in the definition – and therefore not automatically subject to FOISA – where one of the co-owners is the Scottish Ministers.

Views of respondents

32. In responses to the consultation there was wide support for such change, to improve and clarify the operation of section 6 and ensure companies wholly owned by a combination of the Scottish Ministers and other authorities are subject to FOISA.

Scottish Government response

33. The Scottish Government considers that there may be scope to mitigate any consequences of this feature of the legislation through the use of Scottish Ministers' powers under sections 4 and 5 of FOISA to ensure that any affected organisations are made subject to FOISA where appropriate.

Scottish Government commitments

34. The Scottish Government will undertake an assessment of the impact of this issue, and the number of organisations which may be affected. Outcomes will be taken into account in the development of the approach to the future use of the section 4 and 5 powers – with the aim of ensuring that any company outwith scope of the section 6 provisions purely because it is wholly owned by a combination of the Scottish Ministers and other Scottish public authorities will be become subject to FOISA by other means.