We are picking up that FOI will be extended by Parli order to cover housing associations early in Jan, and we are expecting a consultation on extending FOI to all private orgs delivering public services.
Key thing here will be to ensure that a system designed for public sector bodies is not merely foisted onto other orgs, and is limited to the specific function rather simply following the form of the delivery agent.
Just to follow up on this morning’s chat about this - do you have a sense where that consultation would come out from? Are you hearing it’s a ICO thing or something that would come out of Cabinet Office/DCMS?
There isn’t any specific development I was referring to this morning. Just more generally and I was reacting to Gavin’s point from the previous meeting. The above note is about the Scottish developments.
“Gavin Freeguard noted that civil society is anticipating the Information Commissioner’s recommendations on extending freedom of information legislation. He added that even though there is not a specific commitment, it would be strange for the open government action plan to not mention freedom of information at all.”
As you might expect, here at the Scottish Information Commissioner’s Office we’re also very interested in the forthcoming consultation. FOI and contracted-out services and functions has come up several times in OGF discussions and it’s the focus of the International Information Commissioners’ Conference resolution, to which we are a signatory.
We’d be pleased to contribute to any discussions - we have a lot of experience of how designation under FOI law works in practice, including where bodies are designated for part of their functions - we’d be pleased to share.
On “where bodies are designated for part of their functions - we’d be pleased to share”
Please can you advise further on this. At SCVO, we have been supportive of the idea of applying FOI to statutory functions delivered rather than to organisations per se. This allows a charity or private sector org to ensure that decisions and delivery relating to the public function are minuted, but not required to apply FOI to other matters. This is because current FOI legislation was designed with public sector structured organisations in mind.
Happy to do so.
FOI law provides a right of access to information that public authorities hold.
There are several examples of bodies subject to FOI law for part of their functions e.g., community pharmacists for the services provided under NHS contract, special schools for the grant-aided services under contract to local authorities. These bodies, in respect of the specified functions, are “Scottish public authorities” in terms of FOI law. While this might at first be quite alarming, it’s important to stress that the FOI designation doesn’t change anything else; the body is not a “public authority” for any other purposes - classification as a third sector or private sector organisation, or charitable status is unchanged.
There are three broad duties under FOI law: publishing information; responding to requests for information they hold; advising and assisting requesters.
Bodies that are subject to FOI for part of their function have to comply with those duties in relation to the information they hold around the specific function. So a special school has to respond to any request for information about its grant-aided function of providing education but not to requests about separate community-based activities. Of course there is nothing to stop a special school responding to all the requests it receives, it’s simply that now some requests carry a legal right and some don’t.
You mention minute-taking. FOI law doesn’t impose a duty on authorities to record information; it simply provides a right of access to the information the authority holds.
We give new bodies a lot of practical support to help them prepare for FOI law, including guidance and training. We’re happy to share our learning from the issues they encounter and the advice we give.
Happy new year! Here’s an update on FOI in Scotland:
Message from Scotparl:
I understand that you submitted the original letter on behalf of the Open Government network requesting that the Public Audit and Post-legislative Scrutiny Committee undertake post-legislative scrutiny of FOISA. You may recall that following the evidence session on 22 March 2018, the Committee agreed to defer its consideration of post-legislative scrutiny until the Scottish Information Commissioner had completed his intervention into the Scottish Government’s handling of FOI requests from journalists.
I am writing to let you know that, now that the Government’s action plan has been agreed by the Commissioner, the Committee will be taking evidence from the Scottish Information Commissioner at its meeting on Thursday to obtain an update on the intervention. This will help inform the Committee’s next steps in relation to its post-legislative scrutiny.
I am attaching a link to the Committee papers. If you have any queries, please do not hesitate to give me a call.
Public Audit and Post-legislative Scrutiny Committee
Happy New Year Ruchir. Good to see SICO is continuing to engage and push things along.
I know we’d discussed it some time last year but perhaps off the back of this hearing (and any outcomes that come from it for the Committee) those interested could get together to discuss next steps for the OGN?
The Campaign for Freedom of Information in Scotland
(CFoIS) believes that the enforceable right to access information should follow the service rather than the body that delivers it. Therefore we believe that public services, and services of a public nature, which are delivered by the Third Sector and by the private sector should be covered by FoISA. I think it is important for me to state clearly the CFoIS policy position so that the network understands the variance in opinions. I know this is view is opposed by some but we are working collaboratively with a range of organisations to ensure our vision is delivered in Scotland.
Yes due to the sustained campaign of CFoIS, RSLs and their subsidiaries will soon be covered by FoISA - the Freedom of Information (Scotland) Act 2002.The date for implementation has been repeatedly delayed but I have received a letter from the Government today saying the Order should be effective by the end of 2019, which is 17 years later than first promised.
Would the revised Order cover community councils?
They are not statutory service-providers but some, principally in Orkney and Shetland, do. Also, if CCs take on any responsibilities under the Community Empowerment Act, then (following CFoIS’ argument), such matters should be FOISA-able.
Thanks all round
I agree that FOI should follow public services and functions of a public nature regardless of who is delivering it rather a public sector body per se. However, I don’t think FOISA was designed for that. I think FOISA was designed for specific public sector bodies in mind.
Consequently I’m not convinced that FOISA is fit to be applied to all delivering public services in its current form.
Please therefore convince me.
The order Ruchir refers to at the beginning of this topic is under section 5 of FOISA. Section 5 gives Ministers power to designate new bodies as Scottish public authorities for FOI. Following a consultation, the Scottish Government announced its intention to lay an order before the Scottish Parliament to extend coverage of FOISA to registered social landlords.
So the short answer to your question is that this order will not extend coverage of FOISA to community councils.
I recall that there was some discussion of community councils and FOI in the early days of our legislation, but unfortunately I can’t find the reference to it. From memory, the discussion concerned why parish councils as subject to UK FOI law, but community councils are not subject to Scottish FOI law - I think the answer was something to do with different functions.
However, anyone can, at any time, make suggestions to the Scottish Government that it consider additional bodies for extension of FOISA. I’m sure it would be helpful to set out your reasons why you think the bodies should be considered - as you have done here. Factors such as changes in statutory responsibilities can suggest a fresh look.
Another update from Scotparl. So we’re on…
I wanted to let you know that following the evidence session this morning with the Scottish Information Commissioner, the Committee has formally agreed to undertake post-legislative scrutiny of FOISA and a call for evidence will be issued in due course.
Thanks Ruchir - good way to start the new year. I see 2 options off the back of this:
1- Organise an open meeting to discuss collaboration
2- Set up a collaborative document to collate evidence in line with the call from the Committee.
Would others on the Network be interested in meeting before the end of January and beginning to collaborate?
Happy New Year
Yes, happy to join a collaborative document and when are you planning time of a meeting ?
Great to hear. Will circulate once we see the call for evidence. No firm timing for planning meeting yet was looking to see if there was interest on the Forum first before setting up a Doodle, will circulate a set of dates this week to guage interest.
It’s great news that the forum is considering submitting evidence. I’d especially welcome something on the publication duty - how to ensure authorities publish the information that should be accessible without having to make a request for it. I know there’s a lot of expertise on this subject in the forum.
If you have any questions about the current FOI law, there’s a lot of information on our website you might find useful, particularly our briefings and guidance and Your Rights pages. You are also welcome to contact us - we provide an enquiries service during business hours.
There is an opportunity to reform FoISA, including increasing the number and type of bodies designated for coverage such as community councils. On 10th January 2019, the Public Audit and Post Legislative Scrutiny Committee agreed to scrutinise FoISA https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/101363.aspx and we now wait for the terms of reference and the call for evidence.