Freedom of Information International Review: scope of bodies included

Summary

This report aimed to review international FOI laws, focusing on the scope of bodies included, and to compare this with the bodies subject to the Freedom of Information (Scotland) Act 2002. It sought to do so by asking 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 do other jurisdictions determine which bodies are subject to their FOI law(s)?

In terms of the first question, it was found that jurisdictions may either include bodies by requiring those that fall within the terms of a definition to comply, or by specifically designating individual bodies. The first approach has the benefit of clarifying why bodies have been included but can lack certainty about which ones are covered. The second approach allows for certainty but can be relatively unresponsive to changes in the public service delivery landscape. However, it was found that a hybrid approach, in which some bodies fall within a definition and others are directly designated is possible. This has the benefit of retaining most of the benefits of each approach while mitigating the drawbacks. The Mexican Act is probably the best example of this approach. Most bodies in Mexico are included by falling within the terms of a broad definition. However, otherwise private bodies that receive public funds or perform public functions, may be designated by the oversight body. The oversight body receives a list from the relevant public authority that outlines all bodies to which public funds have been sent and the reasons for which the funds have been sent. The oversight body then determines whether the body should be subject to the Act and, if so, to what information the entity should be required to grant access.

Potential areas of alteration for Scotland's FOI legislation

There are a number of areas that could be explored further based on the findings of the review in relation to question 1, including:

• Rather than being listed in a Schedule to the Act, core public authorities could be included by a broad definition. Bodies included in this definition should be required to fully comply with the Act. Bodies included in the core definition could also include entities established by legislation and state-owned enterprises.
• Section 5(2) of the Act could be amended to extend the contexts that allow for the extension of the Act to further bodies, eg to allow for the designation of private bodies that 'receive significant public funds', regardless of purpose, rather than merely those contracted to provide public services.
• Public authorities could be given the power to designate bodies on a short term basis, if the body (a) performs a public function or (b) receives significant public funds. The Scottish Information Commissioner might produce guidance that outlines factors that tend towards and against designation, including the extent of public funds received, the purpose for which the funds were sent and the function performed by the body. Scottish Public Authorities would publish a list, each year, outlining the funds sent to private bodies, the purpose of the funds, whether the body has been designated and, if so, the extent of the body's obligations. This list should serve as information for the public and as an accountability mechanism.

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

The second question was broken down into sub-categories to reflect the types of bodies that tend to be included in the jurisdictions considered. It was acknowledged that there is significant overlap between some of the categories, especially: private entities performing public functions; receiving public funds; that are controlled by a public authority; or that exercise administrative authority. Focus exclusively on the legislative provision therefore gave an unrealistic picture of the types of bodies covered by the Acts. Each of the sub-categories was explored in detail with reference to examples. Some of the examples may provide lessons for Scotland, for example requiring monopolies or entities that have rights to exploit natural resources to provide access to certain classes of information. Others, for example 'information that is required for the exercise or protection of another right', were interesting to note but are unlikely to have much relevance to the Scottish context.

Potential areas of alteration for Scotland's FOI legislation

There are a number of areas that could be explored further based on the findings of the review in relation to question 2, including:

• Section 6 of FOI(S)A could be amended so that a 'publicly-owned company' is one that is 'more than 50% owned' by a Scottish Public Authority (or Authorities), other than an authority so listed only in relation to information of a specified description.
• Section 5(2)(b) of FOI(S)A could be deleted and replaced with 'receive significant public funds'.
• Private bodies that exercise administrative authority, for example professional standard setting bodies, could be subject to the Act but only in respect of information relating to that authority.
• Consideration might be given to designating bodies that operate in areas in which there is little consumer choice or where the service provided is of fundamental importance to the public, for example, rail operators and utilities companies, as well as bodies that have exclusive rights to exploit a natural resource.