Freedom of Information International Review: scope of bodies included

How other jurisdictions determine which bodies are subject to their FOI legislation

The first question relates to legislative drafting. Drafters can designate bodies by requiring all bodies that fall within the terms of a definition to comply with the Act. Alternatively, they may decide to include bodies by listing those that are required to comply. It is also open to drafters to include some bodies by using a definition and others by including them in a list, which in some states is added to by Ministerial Order^[8] or an oversight body's designation^[9].

A related question is the manner in which the laws determine which bodies are subject to which obligations. Some statutes require all of the bodies that are required to comply with the Act to abide by all of the Act's obligations. Others state that some of the bodies have full obligations under the Act whereas others are only partially required to comply.

There are advantages and disadvantages to each approach. The different approaches will therefore be discussed and a few examples considered.

Including bodies by requiring those that satisfy the terms of a definition to comply with the Act

The laws in the majority^[10] of the jurisdictions examined require bodies to comply with the Act if they fall within the terms of a definition.

This approach has the benefit of being simple and, if the definition is sufficiently broad, ensuring that all bodies that should be subject to the Act are. The use of a definition also has the advantage of conveying why bodies are made subject to FOI laws. For example, a number of laws state that 'private bodies that perform public functions' or 'private bodies that receive public funds' are required to comply with the Act. Ignoring issues concerning the meaning of these terms, the above definitions make it clear that such bodies require to comply with the Act because they perform functions of a public nature or because they receive money that has been raised from the public. This makes the decision to include the body less arbitrary than if they merely have been listed with no further explanation. It also makes it easier for the public to get a sense of the type of scenarios in which they are entitled to access information.

The major disadvantage of designating bodies by using a broad definition is a lack of certainty. Bodies that wish to evade their responsibilities under the Act may deny that they are subject as they have not been specifically designated. This can be observed in Kenya, where it has been suggested that some bodies, which are thought to satisfy the definition of 'private body^[11]' within the Kenyan Access to Information Act, are failing to comply with their duties, claiming that they are not subject to the Act^[12].

Moreover, a number of the terms used in the definition may require further clarification. Take the previous example of, 'private bodies that perform public functions'. This leads to the question of how to define a 'public function'. The answer to such a question is highly contested and is likely to change over time. Some jurisdictions have attempted to resolve this problem by including a relatively detailed definition of the bodies that are subject to the Act. For example, the Swedish Law states that the Act applies:

"to documents of public limited companies, commercial companies, economic associations and foundations where municipalities or county councils exercise a controlling influence.^[13]"

And that,

"Municipalities and county councils shall be deemed to exercise a controlling influence if they alone or together,

Own shares in limited liability company or are participants in an economic association with more than half of all votes in the company or association or otherwise possess so many votes in the company or association;

Has the right to appoint or remove more than half of the members of the board of a limited liability company, an economic association or a foundation; or

Constitutes all responsible partners in a corporation^[14].

This detailed definition helps to clarify which bodies are subject to the Act, but can significantly lengthen the definition, which compromises its simplicity.

An alternative approach is to keep a relatively broad definition but to allow for terms in the Act to be interpreted elsewhere. This could be in an explanatory memorandum^[15] or other government guidance^[16], by allowing an oversight body to determine whether bodies are subject on the basis of statutory criteria^[17] or leaving it up to the courts^[18]. This compromises the simplicity of the definition and requires requesters to look beyond the statute to gain a true understanding of the bodies subject to the legislation. Relying on courts to confirm the designation of bodies can be slow and costly process. This may lead some bodies to refuse to comply in bad faith, in the hope that requesters decide not to pursue legal action. However, despite all options having drawbacks, a combination between a broad definition and specific designation according to certain statutory requirements might represent the best option.

Including bodies by specific designation

The advantages and disadvantages of designating bodies by including them in a list is a mirror image to the advantages and disadvantages of assigning bodies by definition. None of the jurisdictions examined exclusively use a list. Due to the multiplicity of organisations subject to FOI, such a list would be extremely long and almost certainly incomplete. However, some jurisdictions such as New Zealand, Ireland, Sweden and, of course, Scotland make partial use of a list. Further, while Mexico does not list bodies that have been specifically assigned, private bodies that perform public functions or receive public funds must be directly assigned by the Mexican oversight body.

Those considering the relative advantages and disadvantages of direct designation may perhaps be interested to note the example of Ireland. Ireland's FOI law is in its third iteration. The current Act assigns bodies by using a broad definition^[19] as well as a list^[20]. This list contains bodies that have been prescribed by a Minister but that have only certain obligations under the Act^[21]. Interestingly, it also contains bodies that would otherwise fall within the definition of 'public authority' but have been specifically exempted, either partially or completely, from complying with the Act^[22]. This stands in contrast to the previous iteration of the Act, where bodies were either listed or designated by Ministerial Order^[23]. That Ireland decided to move from almost exclusively listing to mainly using a definition suggests that the exclusive use of a list was an unsatisfactory approach.

The main advantage of designation by list is that bodies and the public can be absolutely certain of whether a body is subject to the Act and, if so, what obligations that body is required to comply with. States that use some form of list have been largely recognised for having comparatively strong records of compliance with their respective Acts^[24]. This is probably not a coincidence.

However, in the context of the designation of private bodies, it is probably unrealistic to expect a definitive list. This is especially the case if bodies are included that receive public funds or are contracted to perform public functions as such bodies are likely to vary significantly over time. An update to legislation every time a private body receives public funds or is contracted to provide a public service would be an inefficient use of parliamentary time.

An alternative perhaps is designation by Ministerial Order, but again, depending on how broad the criteria for designation is, Ministerial Orders may not be sufficiently responsive to the changing nature of bodies performing public functions or receiving public funds.

Another alternative could be the system in Mexico whereby agencies responsible for oversight of the Act are given the power to designate bodies according to specific statutory criteria^[25]. In order to identify bodies that should potentially be required to comply with the Act, public authorities are required to send a list of otherwise private entities to the relevant agency (the oversight agency in Mexico is structured so that each state has its own agency) detailing the extent to which such entities have received public funds or are performing public functions (expressed as a power emanating from statute)^[26]. This gives the certainty needed but also retains a degree of flexibility.

Following the Mexican model in Scotland however, would likely require considerable alterations to the functions and size of the Scottish Information Commissioner – as it does not have vast resources and operates centrally. To counter this, the decision to temporarily designate bodies that either perform the functions of a public authority or that receive significant public funds could be given to the public authorities themselves. The Scottish Information Commissioner could produce detailed guidance that helps such bodies to determine whether to designate, perhaps based on the factors discussed in a report produced in 2015^[27]. Such guidance would include: the extent of funds received by the body; the purpose for which the funds were sent; and, whether the public had an interest in the disclosure of the body's records. Each public body could be required to publish a list of the bodies that it has sent funds to, the bodies it has decided to designate and what information the public is entitled to receive from each body. This list would serve as information for the public in terms of which bodies and records they are entitled to receive information from, and as an accountability mechanism for the public authority.

Degree of designation?

A related question is whether the Act determines the obligations that bodies are required to comply with under the Act. All of the jurisdictions considered require what can be described as core public authorities^[28] to fully comply with the Act, subject to exemptions. However, where there is some variation, is the manner in which the jurisdictions' legislation determine the obligations of private entities.

One option is to state that all bodies that are subject to the Act have the same obligations. India appears to adopt this position. It could be argued, however, that requiring private bodies to disclose information in areas where there is no public interest is unnecessary, and that placing this burden on some private bodies and not others would be unfair.

A second option is to only require bodies to comply with the Act to the extent of the reason for their designation. For example, if bodies have been included that perform public functions, the Act could only require bodies to release information related to the performance of that public function. Most of the jurisdictions under consideration tend to favour this approach. However, again this can be relatively vague, and some public functions of a private body may be difficult to extrapolate from their private dealings.

Finally, if bodies are explicitly designated, it is possible for a body to be required to comply with the Act only in respect of specific functions. For example, in Sweden, bodies that are not core public authorities are included in the Annex to the Public Access to Information and Secrecy Act 2009. On one side of the Annex the body's name is stated and on the other, the body's obligations under the Act are set out (see table 3). This approach has the benefit of ensuring bodies are certain about their obligations, although, it makes the designation of bodies a far more complex task.

Table 3: Extract from Annex to Swedish Public Access to Information and Secrecy Act 2009 showing different obligations for different bodies

Organ	Activities/functions subject to FOI
Unemployment funds under the Unemployment Insurance Fund Law (1997:239)	Review of unemployment benefit cases (SFS 1997: 238) and cases of membership fee for unemployed member (SFS 1997: 239)
Chalmers University of Technology, limited liability company	All activities
The Association of Visual Arts Copyright in Sweden (BUS)	Allocation of state funds to image and form artists (SFS 1992: 318)
Posten Aktiebolag	Participation in elections (SFS 1993: 1689 and 1993: 1690), referendum (SFS 1993: 1696), special postal service (SFS 1993: 1688), customs control (SFS 1993: 1698), license release (SFS 1993: 1695) of relocation reports (SFS 1993: 1699)
The Swedish Church and its organizational parts	Activities carried out under the Funeral Act (1990: 1144) as well as the distribution and use of the state compensation received by the Church of Sweden under Chapter 4. Section 16 (1988: 950) on cultural heritage, etc.
Swedfund International AB	Review of state aid issues for small and medium-sized Swedish companies in Swedfund's partner countries (SFS 2008: 1272)