Consultation on extending Freedom of Information to registered social landlords

Annex A

Partial Business and Regulatory Impact Assessment ( BRIA)

This 'partial' Assessment accompanies the public consultation on the proposal to extend coverage of the Freedom of Information (Scotland) Act 2002 to registered social landlords. We welcome any comments on or contributions to the analysis it contains. On completion of the consultation process a 'final' Assessment will be prepared taking into consideration relevant contributions.

1. Title of Proposal:

1.1 Extending coverage of the Freedom of Information (Scotland) Act 2002 ('the Act') to Registered Social Landlords.

2. Purpose and Intended Effect

Objective

2.1 To consider whether Registered Social Landlords should be made subject to the requirements of the Act and associated legislation including those duties public authorities are required to undertake under the Climate Change (Scotland) Act 2009.

2.2 The public's right to access information about RSLs (unless environmental in nature) currently extends only to information held by Scottish public authorities. Extending coverage to RSLs themselves would mean that freedom of information requests could be made directly to the RSLs in respect of their public functions.

Background

2.3 The Act provides a statutory right of access to information held by Scottish public authorities. Under section 5 of the Act, coverage can be extended by order to bodies which appear to the Scottish Government to be exercising functions of a public nature and to contractors who provide services that are a function of a public authority.

2.4 We consider that Registered Social Landlords exercise functions of a public nature - as assessed against a range of factors set out in this consultation paper.

2.5 The Scottish Government is aware however that any extension of coverage may place additional administrative and financial pressures on RSLs (which may vary depending on the size of an RSL). This assessment outlines (so far as possible at the pre-consultation phase) the likely costs and benefits of the proposal. Responses to the consultation will help provide evidence on whether extension of coverage is appropriate and proportionate.

Rationale for government intervention

2.6 Ministers are committed to promoting increased openness and transparency in the delivery of public services. Ministers also acknowledge that, dependent upon how public services are delivered, for example by private bodies not subject to freedom of information legislation, there may be limitations regarding the public's right of access to information about public services.

2.7 The Scottish Government is committed to providing public services that are high quality, continually improving, efficient and responsive to local people's needs - and that people should be able to influence the decisions which affect their local area. To this end the Scottish Government believes that ongoing review - and revision - of coverage of freedom of information legislation plays a key part in allowing people to hold their public services fully to account and in promoting increased transparency.

2.8 In addition, enabling the public to make information requests directly to RSLs in terms of their public functions in effect extends statutory information access rights to RSL tenants which are currently only available to tenants of local authority landlords. In other words, extending coverage of the Act would ensure that different groups of social housing tenants - as determined by the status of their landlord - would benefit from the same information rights. In effect, extension equalises information access rights.

3. Consultation

Within government

3.1 This consultation paper has been developed by Scottish Government officials.

Public consultation

3.2 The Scottish Government periodically consults on coverage of the Act and has brought forward two section 5 orders to date ^[9] . Consultation has repeatedly identified interest in extending coverage of the Act to Registered Social Landlords.

3.3 Registered Social Landlords are aware that extending FOI coverage to them is being considered. They now have an opportunity to feed in their views formally.

3.4 The consultation will close on 23 February 2017. Responses received and evidence provided will be considered in detail before the Scottish Government's conclusions are reached. A full BRIA will be developed before any order is laid in the Scottish Parliament.

Stakeholder engagement

3.5 As part of the consultation process, the Scottish Government will meet a number of organisations and representatives from the housing sector so we can better assess the costs and/or benefits to them.

4. Options

4.1 This section gives consideration to the impact, in terms of costs and benefits, of the various options available. Given the early stage of the consultation process there is limited evidence allowing assessment of the impact of the proposals. Following the consultation process a more detailed assessment can be undertaken.

Option 1: Take no action

4.2 This would mean not proceeding with the proposed section 5 order and therefore not extending coverage of the Act to those organisations at 1.1 above.

4.3 Sectors and groups affected: There would be no impact on any of the Registered Social Landlords.

4.4 Costs and benefits: This option presents no added costs to the Scottish Administration, to public authorities, or to private organisations. However this would not help promote openness and transparency in the delivery of core public functions.

Option 2: Making a further section 5 Order

4.5 We are aware that some RSLs aim to operate 'in the spirit of the Act' i.e. to respond to information requests as fully as possible and as promptly as possible. RSLs are also subject to the EIRs as discussed above and are required to comply with obligations set out in the Scottish Social Housing Charter in terms of their communication with their tenants and other customers.

4.6 However, no current information rights are as extensive as those that would be provided by the statutory and enforceable rights contained in Scotland's Freedom of Information legislation. While there may be some merit in considering voluntary arrangements - or in further review of the communication aspects of the Housing Charter - we suggest that the only meaningful alternative to the current position is in legislating to bring RSLs within scope of the Act.

4.7 Formal extension of coverage would mean that RSLs would have to comply with the Act with the role of the Scottish Information Commissioner being extended in respect of promotion and enforcement to cover the additional bodies. The benefits of the proposal extend to the wider public (within and outwith Scotland) whose legal rights to access information would be enhanced.

4.8 This preferred option would extend coverage of the Act to RSLs in respect of the information they hold concerning their functions of a public nature. The right of access to information from these organisations would therefore be on a par with the statutory right to access information from all other authorities subject to the Act.

Risk Assessment

4.9 The risks, including costs, associated with this option will be more clearly established following the consultation process. However, compliance with the Act will create additional administrative responsibilities with the possibility of related costs being passed on, for example, to the tenant.

4.10 There are also wider risks involved. There may be hidden costs to the public purse if an extension of coverage deters RSLs from competing for public funds, thus hindering competition and ultimately affecting the quality and cost of goods and services provided.

4.11 There are though some general factors mitigating the possible costs and risks involved in proceeding with this option:

• The Act has now been in force for almost 12 years and it is commonly accepted that increased transparency is a key part of working with the public sector and receiving public funds.

• At least some RSLs will already have a degree of knowledge of the legislation from liaising with public bodies regarding requests made to the public authority for information in which the body has an interest.

• RSLs are already considered to be within scope of the EIRs (which in effect have many parallels in terms of compliance with the Act)

• A considerable body of guidance is now available for bodies subject to the Act. Additionally, the Scottish Information Commissioner would support bodies in preparing to meet the requirements of the Act.

• Good records management is key to effective request handling and should not be a new requirement for the bodies.

• Proactive publication of information that is likely to be of public interest can help reduce the volume of requests received. Those bodies that make more information available up front are likely to receive fewer requests.

• We note the recent joint publication of guidance and a 'Model Publication Scheme' by the SFHA and GWSFHA which, though voluntary, set out minimum good practice standards and go some way in mirroring existing statutory requirements.

• Coverage by the Act would enable these bodies to manage information requests themselves, and judge what, if any, exemptions would be applicable.

• There may be a reduction in the number of requests, for example to the Scottish Housing Regulator and local authorities, about the delivery of these functions, leading to some small costs savings.

• The proposed order would not be expected to come into force until 1 April 2018, allowing significant preparation time.

Cost estimates

4.12 The costs of implementing the Act for the bodies concerned are difficult to quantify. We set out below some key factors:

(a) The numbers of requests received per year

4.13 It is not possible to predict with certainty the number or scope of requests that a body will receive. They may also receive larger numbers of requests in the first year as requesters make use of their new rights for the first time.

Registered Social Landlords

Initial estimates suggest that request numbers are likely to be low.

(b) The costs of establishing FOI procedures

4.14 While some RSLs (primarily the larger ones) may have limited awareness of the legislation, it would not be reasonable to expect all RSLs to have a detailed knowledge of the Act or familiarity with request handling procedures. We would therefore anticipate organisational costs - particularly in the first year of coverage - in providing staff training, in ensuring there are proper systems in place, including records management processes, and in developing Publication Schemes.

4.15 As noted above, some RSLs seek to comply voluntarily with the Act - which suggests, at least in respect of these RSLs, that some costs of compliance will have been absorbed. However, even with RSLs which are already acting in the spirit of the legislation, we would still anticipate a degree of initial cost to prepare for actual inclusion and the more formal processes that this entails.

(c) The average resources required to handle a FOI request

4.16 There has been limited research undertaken into the costs of handling FOI requests to the authorities subject to the Act. In research undertaken in 2012 the Scottish Government estimated that the average time spent in responding to a request we received was approximately 7 hours, at an average cost in staff time of £231. However average cost figures would vary significantly depending on the organisation and the type of requests it received.

Sectors and groups affected

4.17 Option 2 would impact on all bodies proposed for coverage. It would also affect the Office of the Scottish Information Commissioner ( OSIC), whose oversight and enforcement duties would extend to these additional bodies. An initial assessment by OSIC - taking into training, support and the predicted increased volume of enquiries from RSLs and appeals - identified a cost in the region of £110,000 in the first year reducing to £100,000 per annum thereafter.

4.18 Importantly, it would also impact on the public, whose information rights would be extended. While it is not possible to quantify the benefits to tenants and the wider public of extending information rights in financial terms, the benefits of extension would still be widely recognised as being of value.

5. Scottish Firms Impact Test

5.1 This section will be informed by the evidence gathered during the consultation and completed in the final BRIA. In addition to the written consultation process, we will meet a number of organisations affected by the proposals.

Competition assessment

5.2 We welcome views and evidence as to whether extension of coverage is likely to impact on Registered Social Landlords' ability or willingness to engage with public or private sector partners. This will help a full assessment to be made, which will inform Ministers' final decision. We would note that, in proposing to extend coverage of the Act to all RSLs, this would ensure a level playing field amongst RSLs in terms of ongoing engagement with both the public and private sectors.

5.3 While RSLs may have concerns about being forced to release commercially sensitive information, there are FOI exemptions and EIR exceptions to enable information which is genuinely commercially sensitive to be withheld. We would not anticipate coverage to deter RSLs from commercial engagement with either public or private sector partners.

Test run of business forms

5.4 There are no new business forms required.

6. Legal Aid Impact Test

6.1 These proposals would not have any impact on legal aid. No legal advice is required in order for a requester to seek information under FOI.

7. Enforcement, Sanctions and Monitoring

7.1 Option 1 (do nothing) presents no enforcement or monitoring issues. The current enforcement regime (provided by the Scottish Information Commissioner) would remain the same, with no additional bodies brought within its scope.

7.2 Option 2 (laying an order) would require those bodies affected to comply with the Act. Compliance would be monitored and enforced by the Scottish Information Commissioner. The Commissioner can receive appeals from any person who has gone through the request and review stages of the legislation and is dissatisfied with the response from a public authority. She can also investigate a public authority if she believes that it may be failing to comply with the terms of the legislation or the Codes of Practice issued under the legislation.

7.3 At the conclusion of an investigation (if settlement is not reached) the Commissioner will issue a decision notice which sets out her conclusions. Compliance may require the organisation to release the information sought.

7.4 Failure to comply with a decision notice may be treated by the Court of Session as a contempt of court, the penalty for which may be a fine or imprisonment. An organisation may appeal, on a point of law, to the Court of Session against a decision by the Commissioner. An applicant can also appeal to the Court of Session against a decision by the Commissioner.

8. Implementation and Delivery Plan

8.1 Depending on the outcome of the consultation we envisage bringing forward an order in the spring of 2017 to come into effect on 1 April 2018.

8.2 We would propose to review the impact of an order once it has been in effect for a period of one year.

Statement by the Minister for Parliamentary Business

I have read the impact assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact has been assessed with the support of businesses in Scotland.