Consultation on extending Freedom of Information to registered social landlords

Factor-based approach to extending coverage

As noted above, the Act can be extended to bodies that carry out functions of a public nature or which provide, under a contract with a Scottish public authority, a service which is a function of that authority.

The legislation does not provide a definition of 'functions of a public nature'. However, the Scottish Government considers that a range of factors can be used in determining whether an organisation - or 'class' of organisation - would generally be recognised as undertaking public functions.

We consider these factors to include:

• the extent to which particular functions are derived from or underpinned by statute, or otherwise form part of the functions for which the state has generally assumed responsibilities;

• the extent of public funding of the activity;

• whether the functions are of a nature that would require them to be performed by a public authority if the body did not perform them;

• whether the body exercises extensive or monopolistic powers;

• the extent to which the body is subject to state regulation, oversight or control.

More widely, we would also consider as part of this assessment process:

• whether the public have lost rights to access information under the Act as a result of outsourcing of how public services are delivered;

• whether coverage would impose a significant administrative burden that may be considered to have a disproportionate business impact;

• the extent to which the body seeks to achieve some collective benefit for the public and is accepted by the public as being entitled to do so.

We note that broadly similar factors have also been identified by the Scottish Information Commissioner as set out in a Special Report on coverage published in January 2015 ^[1] .