Freedom of Information International Review: scope of bodies included

Bodies that are subject to FOI laws in other jurisdictions

The second question concerns which private and non-core public bodies tend to be included in the legislation of the jurisdictions examined. The below sub-sections reflect the categories of bodies expressed most in the legislation. Often, the same body may fall within more than one definition, or indeed a term may be interpreted broadly to subsume some of the other categories.

For example, India's Right to Information Act^[29] has a relatively extensive definition that includes a number of the sub-categories below, including state-owned enterprises^[30], private entities controlled by a public body^[31], entities that were established by legislation^[32] and private entities that receive public funds^[33]. However, the Airports Authority of India, established by the Airports Authority of India Act 1994, and owned, controlled and funded by the Indian Government could feasibly have been made subject to the Act on a number of grounds.

Conversely, in Scotland, the legislation empowers Ministers to designate private and non-core public bodies if they perform public functions^[34] or are contracted to provide public services^[35]. However, when consulting on whether to extend coverage of the Act, the Scottish Government has adopted a factor-based approach that takes into account, amongst other things: the extent of public funding; whether the activities of a body are enmeshed with the relevant public authority; and, whether the body has extensive or monopolistic powers^[36]. Public function has thus been interpreted broadly in Scotland, to the extent that it encompasses some of the other categories below.

In addition, for some of the jurisdictions that make most bodies subject to the Act using a list, such as New Zealand, the criteria for designation is not explicit. Therefore some bodies that fall within the below categories may be made subject to the Act, but it is not clear why they have been designated.

Finally, some bodies that fall within the below definitions may be included, whereas others may not. In Ireland for example, Irish Rail is subject to the Act but Bus Éireann^[37] is not, despite both being state-owned enterprises.

Thus, while dividing the bodies subject to FOI legislation into categories is a convenient method of comparing the jurisdictions examined, focusing on the number of subcategories that a law's definition includes paints a misleading picture of the true coverage of the Act. This is particularly true of private entities that perform public functions, exercise administrative authority, are controlled by a public body, are established by legislation and that receive public funds as these categories tend to have the most overlap. Clarification of the exact position of each of the jurisdiction's laws can be found in the annex. Nonetheless, it is helpful to consider each of the sub-categories below and note how each state places emphasis on different factors that they consider important for designation.

State-owned enterprises

State-owned enterprises (SOEs) or government-owned enterprises are subject (or capable of being subject) to FOI laws in all of the jurisdictions considered^[38]. State-owned enterprises are commercial companies, owned by the government, that undertake commercial dealings on behalf of the government. Common state-owned enterprises include airports, banks, transport companies and companies that extract natural resources. State-owned enterprises tend not to be included in the core definition of state body, because, despite state ownership, they exist to undertake commercial dealings – and as such are not considered to be a core public body. Despite this, as SOEs are run by the Government and are often guaranteed by Government money, as well as often operating in areas in which there is a strong public interest to ensure there is proper management, there are thus are strong reasons for the designation of SOEs.

The main point of contention in relation to state-owned enterprises is the degree of ownership required for bodies to made subject to the Act. A few laws require 100% ownership before bodies are required to comply with the Act^[39] but most require at least more than 50% ownership^[40]. In some instances state-owned enterprises need to be specifically designated in order to be subject to the Act's obligations^[41]. For example in New Zealand, Solid Energy New Zealand^[42] is subject to the legislation but Genesis Energy is not, despite the New Zealand Government owning a majority share in both. Further, in some jurisdictions state-owned enterprises are only partially subject. For example, in Sweden, PostNord Sverige is only required to provide access to documents in relation to its roles in which it has statutory powers^[43].

The Scottish Government could potentially amend Section 6 of FOI(S)A to cover companies that are more than 50% owned by a public authority (or public authorities), other than those listed only in relation to information of a specified description.This would bring the Act in line with other international jurisdictions.

Private entities that perform public functions

Eight of the eleven jurisdictions considered allow for the designation of private entities that perform public functions or some variation of that term. Further, in the remaining three jurisdictions, it appears that the performance of a public function is a relevant criterion for designation under the Act.

The major problem with the designation of private bodies that perform public functions is that there are varying ideas about what 'public function' actually means.

Some laws^[44] answer this question pragmatically and require bodies that have duties arising from legislation or the constitution to comply with the Act^[45]. The problem with such a definition is that it does not cover the non-statutory duties that public authorities may have. A way to cover such duties is to make bodies that are contracted to provide public services capable of being designated^[46]. However, this definition is relatively circular as it leaves open the question of how to define a 'public service'. Estonia is the only state examined that specifically spells out what is meant by 'public duties' stating that it 'includes the provision of educational, health care, social or other public services.^[47]' However, even here, the definition is meant to be non-exclusive suggesting that other services may also be considered to be public functions.

As already discussed, 'public function' can be defined narrowly, and used in combination with other categories in an attempt to catch as many bodies as possible. Alternatively, it can be defined broadly to include the receipt of public funds, the exercise of administrative authority, being established by legislation, and even bodies that have access to natural resources (including monopolies).

In some jurisdictions^[48], bodies that have public functions are only subject to the Act if they have been pro-actively designated. This tends to be by Ministerial Order^[49]. However in Mexico the task is given to the oversight body who, after receipt of a list of entities that have been given funds by public authorities^[50], must determine according to statutory criteria, whether the body should be subject to the Act's obligations and what its obligations should be^[51].

In the vast majority of cases, private bodies that undertake public functions are only subject to the Act to the extent of the performance of those functions. Indeed, in New Zealand, it is not the body itself that is required to respond to the request, but rather the public body that is usually required to perform the function^[52].

Therefore, although a very common criterion for designation, the exact meaning and method of designation of entities that perform public functions varies greatly from law to law. Scotland conceives of 'public function' quite broadly and could perhaps benefit from a more explicit deconstruction of the term in the legislation – so that the relevant factors that the government takes into account when designating bodies is clearer.

Private entities that receive public funds

Private entities that receive public funds are often connected with bodies that perform public functions. Indeed, in India, it appears that the receipt of public funds determines whether a body is performing a public function, as 'public function' is not mentioned in the Act.

Most of the laws considered mention 'private entities that receive public funds' or 'are contracted to provide public services' as criteria capable of leading to designation. Those that do not do so explicitly^[53], appear to view such factors as a determinant leading to designation.

New Zealand, Scotland and Estonia all continue to tie the receipt of public funds to the performance of public services. New Zealand, for example, makes it possible to request information from 'independent contractor[s]' engaged by a public authority^[54]. However, the rest of the jurisdictions do not tie the receipt of public funds to public functions.

The key question in relation to the receipt of public funds is the level required for designation. In Brazil, all bodies in receipt of public funding are required to comply with requests. However, such bodies need only comply in respect of those funds. In India, all bodies 'substantially financed^[55]' by public funds are subject to the Act. 'Substantially financed' has been defined in another Act as a 'grant or loan… not less than rupees twenty-five lahks [about £27,000] and the amount of such grant or loan is not less than seventy-five percent of the total expenditure of that body or authority^[56]'. This specific criteria has the benefit of clarity but, if stuck to rigidly, may result in some bodies that should be subject to the Act avoiding designation.

Another question is whether all bodies that receive funds are required to comply with the legislation or rather only bodies that have been given funds for a particular purpose. As mentioned, most jurisdictions accept that bodies that receive public funds to perform a public function should be designated. However, in India and Ireland^[57], funding for other purposes such as grants or loans are also deemed to be funding capable of leading to designation.

Most jurisdictions do not require bodies in receipt of public funding to be fully compliant with the Act. In most cases the extent of the bodies' obligations relates to the extent of the funding and the activities to which the funding has been used. Further, many countries do not automatically designate bodies that receive public funding. Bodies responsible for designation are usually required to weigh up whether to designate by considering the degree of public funding and for what purpose before making a decision. This can be seen, for example in Mexico, India and Ireland.

In Scotland, the receipt of significant public funds might be considered sufficient to require designation. If so, section 5(2)(b) might be amended to remove reference to the contracting of public services and move towards the more general, private bodies that 'receive significant public funds'. Any public authority that assigns significant funds to a private entity should be required to specify the purpose for which the funds were granted.

Private entities controlled by a public body

Six of the eleven jurisdictions considered require bodies that are subject to the control of public authorities to comply with obligations under the Act. However there seems to be variation as to what is meant by 'control'.

In Sweden and Nigeria, 'control' means financial control and tends to include bodies in which the state has a 'controlling stake'.

In Brazil, Ireland and the Netherlands bodies can be designated if they are 'directly or indirectly controlled' by public authorities. Whilst the meaning of 'control' still is not clear, this could cover arms-length bodies created by public authorities to perform specific tasks or indeed bodies in which the government has no financial stake but which rely on government funding to survive. It thus appears here that control is still related to funding.

It is in India, however, that there has been most discussion of the concept of 'control'. One case has suggested that governance 'through the medium of Acts/Rules^[58]', is sufficient to establish control. In other words, any entity subject to mere regulation of public authorities may be subject to the Act. However, this ruling is considered contentious and it has been disputed in other cases^[59].

For the most part therefore it seems that 'control', tends to imply financial control. This can be through ownership, funding or the imposition of a contract. In some of the jurisdictions that do not mention control, the receipt of public funds or bodies in which the government has more than 50% ownership would include the same bodies as 'bodies controlled by public authority'.

Entities that exercise administrative authority

The expression 'entities that exercise administrative authority' is not one that actually appears in any of the Acts. Mexico, the Netherlands and Nigeria come the closest by designating 'autonomous bodies^[60]', 'regulatory industrial organisations^[61]', and any 'administrative or advisory body of the government^[62]', respectively. However, if one considers the specific bodies subject to the Acts it can be that such bodies are often subsumed under a different definition.

Entities that exercise administrative authority tend to be bodies formally independent of government, and occasionally even completely separate from the Government, that nonetheless possess some administrative or regulatory power. Often entities that exercise administrative authority are government funded but they also may be funded by membership contributions.

Examples of bodies that exercise administrative authority include professional licensing and standard setting organisations. In Sweden, several bodies that could be described as exercising administrative authority have been designated, for example the Royal Swedish Aeroclub is required to allow access to documents related to the 'inspection and supervision of aircraft and issue and renewals of the airworthiness certificate^[63]' or the Institute for the Professional Development of Doctors in Sweden (IPULS) is required to facilitate access to public documents related to the examination of issues concerning the provision and distribution of places for specialist competence courses that are included in doctors' continuing education and which are organized with state funds'^[64].

In Scotland, state bodies that exercise administrative authority such as the Law Commission and the Scottish Information Commissioner are subject to the Act. However, principally member-based organisations that vest administrative authority, for example the Law Society of Scotland, are not. Perhaps this is an area where the law could be extended – although the Act's obligations should only stretch to the extent to which such bodies exercise administrative authority.

Entities that were established by legislation

Five of the eleven international jurisdictions explicitly designate entities that 'were established by legislation'. However, several others include such bodies either by specifically listing them^[65] or by using an alternative definition^[66]. Bodies established by legislation tend to be state-bodies formally separate from the three traditional branches of state, for example independent commissions and ombudsmen as well as central banks and public corporations. Public corporations are distinguished from state-owned enterprises in that they are not registered according to the states companies legislation and that they often do not have any financial objectives. An example of a public corporation would be the Airports Authority of India, responsible for the maintenance of civil aviation infrastructure in India which was established by the Airports Authority of India Act 1999.

In India, there have been some attempts to suggest that bodies created according to the terms of legislation, for example those registered under the Multi-State Co-operative Societies Act 2002^[67] and those under the Companies Act 2013, are subject to the RTI Act. However, the Supreme Court has distinguished between bodies established by legislation and bodies established according to the terms of legislation^[68]. The Court noted that the Indian Act designates bodies that are created 'by or under the Constitution' but only designates bodies created 'by any other law made in Parliament', suggesting that the drafters deliberately intended to exclude bodies created under legislation^[69].

Political parties

Political parties are required to comply with access to information legislation in only a few of the jurisdictions reviewed. Even then, only in Mexico are political parties explicitly mentioned in the legislation^[70].

In South Africa and India, where political parties are not explicitly cited in the legislation but have been found to be subject in decisions by a court and the oversight body respectively, designation remains contentious.

In India, political parties have refused to comply with the ruling of the Central Information Commissioner, the chief oversight body with the power to determine whether a body is subject Right to Information Act. A number of cases challenging their lack of compliance were before the Supreme Court at the time of writing^[71].

In South Africa, the Western Cape High Court said the constitutional right to access information^[72] in combination with the right to vote^[73] required political parties to disclose the details of entity that had provided significant donations to the party^[74]. As the South African Act did not necessitate the release of this information, it was deemed to be unconstitutional. The court have allowed the legislature 18 months to remedy the lack of law, the result of which is the Political Party Funding Bill, which is yet to receive Presidential assent.

There is therefore no international trend towards the designation of political parties. Political parties sit outside the traditional public/private divide and thus tend not to be covered by wider definitions. Clearly, there is a public interest in the release of some information held by political parties such as funding, pay-grades, disciplinary procedures etc. Further, their public facing nature and need to gain public support means that political parties are likely to act in a relatively transparent manner as a matter of course - think, for example, of televised annual party conferences and public meetings. There has been some suggestion that MSPs should be required to comply with FOI(S)A. However, as seen above, the designation of political parties and/or MSPs is likely to be highly controversial.

Monopolies or private entities with a dominant position in the market

Another interesting way to catch bodies that might be considered to hold information that is in the public interest is to require monopolies or private entities with a dominant position in the market to comply with the duty to provide information. Only three of the laws examined specifically capture such bodies in the law. That said, they do so in relatively different manners and to relatively different degrees.

The only law to explicitly reflect the above language is the Estonian PIA. Here the law provides that 'undertakings which have a dominant position in the market or special or exclusive rights or which are natural monopolies[,]^[75]' are required to comply with the Act. However, such bodies are only required to comply 'with regard to information concerning the conditions and prices of the supply of goods and services and changes thereto^[76]'. The Estonian Act seems to have included such bodies on the basis that their dominant position in the market gives them a higher degree of power over the average consumer than companies that are obliged to compete for a share of the market. The power of the company to determine changes in price, in the knowledge that those relying on the service do not have the option to opt for a competitor, suggests there is an enhanced need for the public to gain an understanding into how prices are determined.

In Kenya, the reasoning for the inclusion of similar bodies appears to be slightly different. Kenya's law provides that a body that 'has exclusive contracts to exploit natural resources^[77]' is required to comply with the Act in relation to those resources. The inclusion of such bodies in Kenya appears to derive from the inherent public interest in the exploitation of resources that are properly deemed to belong to the state – and thus the public.

In the Netherlands, although not arising from the Dutch legislation, any private entity that is directly competing with a state-owned enterprise is subject to the same obligations of that state-owned enterprise^[78]. This requirement exists in order to prevent state-owned enterprises being placed at a competitive disadvantage in relation to non-state owned companies. Indeed, if the state-owned enterprise is privatised none of its competitors are any longer required to have their information disclosed. This suggests that the Dutch requirement isn't based on any wider sense of the public interest. HHowe

A related concept to those above is the requirement, which has been developed in the case law of some of the jurisdictions, for example South Africa^[79] and India^[80], that requires previously state-owned enterprises to continue to comply with the Act's obligations. This ties in with what has been described by the Scottish Information Commissioner as a 'loss of rights' approach^[81], whereby the requester retains their right to receive information regardless of whether the body performing the function is owned by the state or privately.

Scotland could perhaps consider the designation of bodies that are monopolies or have privileged rights to provide public services or exploit natural resources. The provision of public transport, energy etc are areas where, despite their private provision, have significant importance to the public. Both the essential nature of these services and the fact that the companies that provide them are given a privileged place in the market heightens the need for stronger accountability to the public. Whether such bodies should be fully required to comply with the Act, or only subject to certain disclosure obligations, such as in terms of the setting of prices, is an area that merits further consideration.

Private entities that hold information that is required for the exercise or protection of constitutional rights

Two of the jurisdictions examined, South Africa and Kenya, constitutionally guarantee the right to information from private entities, if that information is required for the exercise or protection of any other constitutional rights. The inclusion of such an article reflects the recognition that the state is required to protect the rights of its citizens, even when the threat stems from non-state actors.

There have been a number of cases in both South Africa and Kenya that have clarified how this right works in practice.

In Kenya, the High Court of Nairobi determined that the right to information^[82] in conjunction with the right to freedom of expression^[83] and of the media^[84] did not require private bodies to release information requested by the media^[85]. The court argued that it would be unrealistic to assume that the right to information required 'a positive obligation on everyone to give it [the media company] whatever information it sought in order to enable it to publish stories and information.^[86]'

In South Africa, the case law is even further developed. In order to make use of the right it has been held that, 'an applicant has to state what the right is that he wishes to exercise or protect, what information is required and how that information would assist him in exercising or protecting that right.^[87]' This position has been criticised for placing a too onerous burden on requesters of information^[88]. It is argued that those asking for information often do so precisely because they do not know its contents. Therefore requiring requesters to prove that the information they request, which they often have not seen, is necessary for the protection of another right is extremely difficult. This has been made even more difficult by the decision to interpret the term 'reasonably required' as 'understood to connote a substantial advantage or an element of need', which has been considered to be a relatively high standard for the requester to prove. However, use of this provision in South African law is not impossible. It has been relied on, for example, to require political parties to release details of their funding^[89] and for an individual to gain information on reasons behind their dismissal from employment^[90].