Freedom of Information International Review: scope of bodies included

Executive Summary

Introduction

The number of international jurisdictions that have adopted freedom of information laws has expanded greatly since the mid-1990s. In the same time period, many countries have seen a transformation in the role of the state and the way public services are delivered.

Scotland enacted its freedom of information legislation in 2002, although it wouldn't be until the beginning of 2005 that the Act came into force. The Act includes provisions that empower the Scottish Ministers to expand its scope as required.

This paper sets out the findings of a review of freedom of information legislation in eleven international jurisdictions, with a particular focus on the scope of bodies included. The laws of the jurisdictions examined are compared with the Freedom of Information (Scotland) Act 2002.

The report addresses two main questions:

1) How do other jurisdictions determine which bodies are subject to their FOI law(s)?

2) Which bodies are subject to FOI law(s) in other jurisdictions?

How other jurisdictions determine which bodies are subject to their FOI law(s)

Table 1, below, sets out the position across the eleven jurisdictions included in the review. In summary:

• All of the jurisdictions examined, to a greater or lesser extent, require bodies that fall within the terms of a definition to comply with their FOI legislation.
• A few jurisdictions primarily list the bodies subject to their FOI law(s) in a schedule to the legislation, although this tends to be those with older legislation.
• Some jurisdictions, whilst primarily assigning bodies that fall within in a definition, allow for the specific designation of certain bodies.

Table 1: How do other jurisdictions determine which bodies are subject to their FOI law(s)?

Which bodies are subject to FOI laws in other jurisdictions?

Table 2, overleaf, sets out the position across the eleven jurisdictions included in the review. In summary:

• Most states assign core-public bodies as well as state-owned enterprises, bodies that perform public functions and bodies that receive public funds.
• The term 'bodies that perform public functions' differs in meaning across the jurisdictions' laws. It can be construed either narrowly, to relate specifically to the performance of public services, or broadly, to include a number of the other sub-categories.
• A few of the jurisdictions' laws cover private entities that have recently been privatised or otherwise have some key importance to the public (eg natural monopolies).
• For many laws there is a bifurcation of obligations between core-public bodies and private bodies that nonetheless have some public role. The former are fully subject to the Act's obligations. The latter are only subject to the extent of their public role.

Potential areas of alteration for Scotland's FOI legislation

The review findings point to a number of alterations that could be considered for Scottish FOI legislation, including:

• a move towards a broad definition combined with designation for certain bodies.
• a change in the statutory criteria for designation under s.5(2)(b) to bodies that receive significant public funds.
• allowing public authorities to temporarily assign certain bodies for specific activities according to statutory criteria and with the help of the Scottish Information Commissioner.
• designation of private entities that exercise administrative authority and those that are monopolies or have a dominant position in the market.

Table 2: Bodies that are subject to FOI laws in other jurisdictions