Freedom of Information (Scotland) Act 2002 - exercise of section 5 power: report

1. Introduction

1.1 Purpose of report

1. The Scottish Government has a longstanding commitment to keep the Freedom of Information (Scotland) Act 2002 (FOISA) under review, and this includes considering extending its coverage where it is appropriate to do so. The Scottish Ministers have powers under FOISA to extend its coverage by making subordinate legislation. The main power to do so is in section 5 of FOISA (the section 5 power).

2. The Scottish Ministers are required to lay a report before the Scottish Parliament every two years about the exercise of the section 5 power, in accordance with section 7A of FOISA. This requirement came into force on 31 May 2013. This is the fifth such report to be laid. The previous report – covering the period 1 November 2019 to 31 October 2021 - was laid on 29 October 2021.

3. This report covers the period from 1 November 2021 to 31 October 2023 (the reporting period).

1.2 The Freedom of Information (Scotland) Act 2002

4. FOISA came into force on 1 January 2005. It provides a statutory right of access to information held by Scottish public authorities. These range from the Scottish Parliament and the Scottish Government to local authorities, NHS boards, higher and further education institutions, doctors and dentists, among others.

5. Requested information must be provided unless it is subject to one or more exemptions, as set out in FOISA. If a requester is dissatisfied with the response received to a request or does not receive a response, they can ask the authority to review its decision or handling of the request.

6. The Scottish Information Commissioner both promotes and enforces FOISA. Requesters who remain dissatisfied with the conclusions of an authority's review of their request can appeal to the Commissioner for a decision.

7. The Scottish Government's longstanding approach to freedom of information law is set out in its Six Principles of FOI. The second principle enshrines the incremental approach adopted by the Scottish Ministers towards reform of FOISA:

[The Scottish Government] operates within the Freedom of Information (Scotland) Act 2002 rather than proposing significant changes to it, but adjusts the regime where it is necessary and sensible to do so. The Act must operate well for both members of the public and Scottish public authorities. We will keep the Act under review by promoting good practice within existing frameworks and considering extending coverage.

8. As part of this principle, the Scottish Government keeps under review the coverage of FOISA.

1.3 The section 5 power

9. When the Scottish Ministers make a section 5 order, the order designates a person or body as a Scottish public authority for the purposes of FOISA. A section 5 order can designate persons or bodies that:

(a) appear to the Scottish Ministers to exercise functions of a public nature; or

(b) provide, under a contract with a Scottish public authority, a service whose provision is a function of that authority.

10. It is not possible to designate a person or body if it is already listed in schedule 1 or could be added to that schedule instead (section 4 of FOISA explains who can be added to schedule 1) or if it is a public body or the holder of a public office.

11. In other words, designation under section 5 is for persons or bodies that are not themselves public, but either exercise functions of a public nature or have a contract with a Scottish public authority to provide a service which is a function of that authority.

12. In previous reporting periods, section 5 orders have been used to extend FOISA to:

(a) arms-length external organisations set up by local authorities to deliver recreational, sporting, cultural or social facilities and activities (2013 Order)

(b) grant-aided schools and independent special schools (2016 Order)

(c) providers of secure accommodation (2016 Order)

(d) Scottish Health Innovations Limited (2016 Order)

(e) private prison contractors (2016 Order)

(f) registered social landlords and their subsidiaries (2019 Order)