Freedom of Information coverage extension: consultation

Proposals for further extension

Background

19. FOISA requires the Scottish Ministers to lay a report before the Scottish Parliament every two years about the exercise of the section 5 order-making power. The report must either explain how the power to designate further Scottish public authorities has been used, or give the reason for not doing so. It may also outline the Government's future intentions for the use of the power. The second of these reports was laid in October 2017 and the next one will be laid in October 2019.

20. The 2017 report outlined the Government's intention to assess options for further section 5 orders with the objective of ensuring coverage is robust and reflects changing patterns of public service delivery. In particular, we indicated that we would:

(a) explore whether certain organisations – or classes of organisation – delivering health and social care functions, but currently not subject to the Act, should be brought within scope of the legislation

(b) liaise with Audit Scotland for our joint interests in its project assessing the delivery of council services by arms-length external organisations (some of which were designated in the first section 5 order)

(c) engage with the third sector because third sector bodies can be publicly funded to exercise functions which may be considered to be of a public nature, or to provide services which are functions of an authority

21. On 20 June 2018, the Scottish Parliament agreed (among other things) 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."

22. We will report more fully on the work undertaken in response to those intentions in the next report which will be laid in October 2019. However, this consultation focuses on organisations providing services on behalf of the public sector. For example, organisations delivering health and social care functions may do so under contract with a Scottish public authority to provide a service that is a function of that authority, and similar considerations may apply to some third sector bodies. Looking first at organisations providing services on behalf of the public sector may also help to identify more clearly where future work on extension should be targeted.

23. Additionally, the Scottish Information Commissioner commissioned research on the views of the public about the sort of organisations they thought should be covered by FOISA, reporting on it in a Special Report published in January 2015^[1]. The Commissioner found "overwhelming" support for further extension.

Organisations providing services on behalf of the public sector

24. Although the Parliamentary motion agreed that the Scottish Government should consult on extending FOISA to companies providing services on behalf of the public sector, this consultation paper instead uses the term "organisations" because it is broader than "companies" and reflects the fact that a variety of corporate structures might be used when providing services on behalf of the public sector. We do not consider that the corporate structure adopted should affect whether or not an organisation becomes subject to FOISA – indeed, if certain forms (say companies) were potentially designated and others were not, then this would result in a weakness in the section 5 order that could be exploited to avoid designation. FOISA itself uses the term "person", which includes both individuals and bodies corporate like companies, but we think that using that term could be confusing because in ordinary usage "person" is generally understood to be synonymous with "individual".

25. Additionally, this consultation paper refers to "providing services on behalf of the public sector" throughout. Given the requirements of section 5 of FOISA, when we talk about "the public sector" we mean existing Scottish public authorities for the purposes of FOISA^[2]. Additionally, as we discuss below, FOISA imposes tests about the services that can be covered in a section 5 order^[3]: they have to be provided under a contract made with an existing Scottish public authority, and the service must be one which the authority has the function of providing.

Who should be covered?

26. When the Scottish Ministers designate an organisation as a Scottish public authority by making a section 5 order, they must do two things in the order. First, they have to say what the organisation being designated is (or say that all organisations that meet a specific description are being designated). Secondly, they must say what the service is that the organisation is providing.

27. For example, the 2016 Order extended FOISA to private prison contractors. It did this by describing the organisations being designated as "persons providing services under a contract with the Scottish Ministers for the running of a prison or part of a prison in Scotland". It also said that the service being provided was "the provision or running of a prison or a part of a prison in Scotland under section 106(1) of the Criminal Justice and Public Order Act 1994".

28. In order to comply with the requirements of section 5, we expect that any further designations will work in broadly the same way: they will identify both the organisations affected (possibly by description) and also the services being provided.

29. A number of tests must also be satisfied. First, the organisation must be providing the services under a contract made with an existing Scottish public authority. Secondly, the service must be one which the authority has the function of providing – it does not encompass every contract for services entered into by an authority.

30. For example, we would not expect to designate organisations that have a contract to supply stationery to the Scottish Government because it will not have the function of providing stationery to anyone else. Stationery is simply needed so that it can discharge its functions. By contrast, contracts for the provision and running of prisons are contracts to provide a service that the Scottish Ministers have the function of providing^[4].

31. We are therefore seeking views about which organisations (if any) should be considered as candidates for further extension of FOISA, and which services they are providing on behalf of a Scottish public authority.

Question 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?

Yes
No
Unsure

Question 2

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

For the services that you identify, you may wish to give examples of organisations that provide the service (e.g. "Company X") or to describe types of organisations that provide it (e.g. "every person who has a contract with Authority Y to provide service Z")

Question 3

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

Yes
No
Unsure

If you answered "Yes", please explain why you think that they should be excluded.

32. We are also seeking views on whether any conditions should have to be satisfied before organisations providing services on behalf of the public sector should be subject to FOISA. There may be circumstances where that would be disproportionate, for example if the services are being provided only on a temporary, intermittent or emergency basis, or if the contract for the services has a very low value. We would therefore welcome your views on potential conditions that should have to be satisfied before an organisation providing services on behalf of the public sector becomes subject to FOISA.

Question 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?

Yes
No
Unsure

If you answered "Yes", please explain what those conditions are and why they should apply.

Impact on organisations

33. We welcome views and evidence 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.

34. We note that organisations may already have some exposure to FOISA because the Scottish public authorities with which they contract are subject to the legislation. We are aware that authorities sometimes ask their contractors for information they hold in order to help the authority respond to a request for information.

Question 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?

It would be helpful if you could provide any examples where you are aware that the impact of FOISA has been a factor for organisations in deciding whether or not to contract with a Scottish public authority.