Freedom of information - extension of coverage: consultation analysis

Introduction

The Freedom of Information (Scotland) Act 2002

1. The introduction of the Freedom of Information (Scotland) Act 2002 (FOISA), which came into force in 2005, effected a significant enhancement of rights to access information held by Scottish public authorities.

2. FOISA provides a statutory right of access to information held by Scottish public authorities. These include the Scottish Parliament and the Scottish Government, local authorities, NHS Boards, higher and further education institutions, Police Scotland, doctors and dentists, among others.

3. In order to keep FOISA up to date, section 5 enables the Scottish Ministers to designate additional bodies as Scottish public authorities. Once designated, any new Scottish public authority is required to comply with FOISA, including the three principal duties of proactively publishing information, responding to requests for information, and providing advice and assistance to requesters. It also automatically becomes subject to the Environmental Information (Scotland) Regulations 2004.

4. Where Scottish public authorities are designated in respect of certain functions or services, they are only required to provide information that relates to those functions or services.

5. A section 5 order can designate persons or bodies that:

(a) appear to the Scottish Ministers to exercise functions of a public nature; or

(b) provide, under a contract with a Scottish public authority, a service whose provision is a function of that authority.

6. It is not possible to designate a person or body if it could be added to schedule 1 instead (section 4 of FOISA explains who can be added to schedule 1) or if it is a public body or the holder of a public office.

7. In other words, designation under section 5 is for persons or bodies that are not themselves public, but either exercise functions of a public nature or have a contract with a Scottish public authority to provide a service which is a function of that authority.

8. The Scottish Ministers have carried out three previous extensions of FOISA using their section 5 powers, in 2013, 2016 and 2019. The most recent order came into force on 11 November 2019, extending coverage to registered social landlords and their subsidiaries. The earlier orders extended FOISA to:

(a) arms-length external organisations set up by local authorities to deliver recreational, sporting, cultural or social facilities and activities (2013 Order)

(b) grant-aided schools and independent special schools (2016 Order)

(c) providers of secure accommodation (2016 Order)

(d) Scottish Health Innovations Limited (2016 Order)

(e) private prison contractors (2016 Order)

9. In June 2018, the Scottish Parliament agreed that the Scottish Government should consult on proposals to further extend coverage of Scotland's freedom of information legislation, for example, to companies providing services on behalf of the public sector. Accordingly, the principal focus of the consultation has therefore been to establish the potential range of organisations which may be identified as providing services on behalf of a Scottish public authority and which might therefore be considered as candidates for designation for that reason.

10. However, the consultation also provided an opportunity to consider the potential for extension to organisations which exercise functions of a public nature.

11. This report presents the analysis of responses to the public consultation exercise. That consultation has taken place concurrently with, but independently from, the post-legislative scrutiny of FOISA being undertaken by the Scottish Parliament's Public Audit and Post-legislative Scrutiny Committee. Many of the oral and written submissions to the Committee also raised issues regarding the coverage of FOISA, and whether it should be extended. When considering our next steps, we will take into account the points made in these submissions to the Committee. We will also consider any views about extension expressed by the Committee itself in its report.

The consultation

12. The Scottish Government sought views on further extending the coverage of FOISA, with a focus on those who provide services on behalf of the public sector, via a public consultation exercise which ran from 30 August to 3 December 2019.

13. The consultation paper provided information on FOISA, the Scottish Ministers' powers to extend coverage under section 5, and previous extensions. It posed the following questions:

1. Do you think that the Scottish Ministers should extend the Freedom of Information (Scotland) Act 2002 to organisations that provide services on behalf of the public sector?

2. Which services provided on behalf of the public sector by organisations should be considered for extension?

3. Are there any services provided on behalf of the public sector by organisations that you think should be excluded from consideration?

4. Are there any conditions that you think should be satisfied before organisations providing services on behalf of the public sector become subject to FOISA?

5. Do you have any comments on whether extending FOISA to organisations providing services on behalf of the public sector is likely to impact on those organisations' ability to provide services in this way?

6. Do you have any comments or evidence about the effectiveness of accessing information about a contract to provide services to the public sector by making requests to the Scottish public authority that has contracted out the service?

7. Do you have any comments on the types of person, body or organisation – or on the functions of a public nature – which should be considered as future candidates when further extending the coverage of FOISA?

The respondents and responses

14. The consultation received 36 responses: 14 responses were from individuals and 22 responses were from organisations (see the Annex for a list of responding organisations). Generally, third sector organisations were best represented among the respondents. Relatively few private or public sector organisations responded.

15. Most of the responses were submitted via the Scottish Government's consultation hub, Citizen Space, with 10 responses submitted via email.

Approach to analysing the responses

16. The consultation sought to gather as wide as possible a range of views, and posed a number of open questions. The analysis was therefore primarily qualitative in nature. All responses were downloaded from Citizen Space and reviewed to identify the themes and factors raised. Responses were coded and frequency analysis undertaken to identify the most frequently raised points (although, as noted in the section below, this was not a quantitative exercise due to the non-representative nature of the response).

17. It should be noted that this analysis presents the views as provided by respondents, and does not comment on the accuracy or otherwise of the points they raise.

Interpretation of the findings

18. It is important to note that the views of those who have responded cannot be assumed to be representative of the views of the wider population due to the relatively small number of respondents and the self-selecting nature of the response. This analysis therefore seeks to draw out the range of factors and issues raised by respondents. It provides some indication of how widespread views were among respondents, but intentionally avoids a quantitative assessment of the response as being to any extent 'representative' of all views.

This report

19. This report presents an overview of the range of responses received to the consultation, drawing out the themes that emerged and the detail of specific points raised by respondents.