Extending freedom of information to the private sector
The Scottish Government plans to extend the Freedom of Information (Scotland) Act 2002 (the “Act”) to certain categories of private sector organisations providing services of a public nature later this year.
Background
The Act provides a statutory right of access to information held by Scottish public authorities and currently applies to a range of bodies including the Scottish Government and Parliament, NHS boards and further education institutions.
The Act can be extended by the Scottish Government to bodies that carry out functions of a public nature or which provide, under a contract with a Scottish public authority, a service which is a function of that authority. This can be done by making an order under section 5 of the Act, which is used to designate certain bodies as a Scottish public authority. They are then subject to the full requirements of the Act, including the obligation to respond to requests for information and proactively publish information.
The Scottish Government first extended the Act using a section 5 order in 2013. This extension brought certain trusts established by local authorities to provide recreational, cultural, sporting or social facilities and activities within the scope of the Act.
The Scottish Government has now laid a second section 5 order before Parliament, which proposes to extend coverage of the Act to certain categories of private sector bodies (the “Order”). Subject to Parliamentary approval, the Order will come into effect on 1 September 2016.
Who is affected and why?
The Order will extend coverage of the Act to the following bodies:
- Contractors who run privately-managed prisons;
- Providers of secure accommodation for children;
- Grant-aided schools; and
- Independent special schools.
Key factors in the decision to extend the Act to these bodies include the fact that they are deemed to perform a core function of the State and receive significant amounts of public funding.
In addition to the organisations listed above, the Scottish Government has indicated that it intends to run a further consultation later in 2016 regarding the extension of the Act to cover registered social landlords.
Although the bodies captured by the Order are not currently subject to the Act, information about the services they provide is currently available to the public to varying degrees. However, the Scottish Government has expressed concern that the outsourcing of public services may hamper the public’s right of access to information about those services. Extending coverage of the Act to these bodies will, therefore, create a level playing field by ensuring that they are subject to the same obligations as public authorities, including the requirement to respond to information requests and proactively publish information. This will help to increase transparency and accountability as regards the delivery of those public services.
Comment
The Scottish Government waited nearly a decade before taking advantage of its ability to extend the Act using a section 5 order. The Government’s 2015 consultation reiterated its commitment to promoting increased openness and transparency in the delivery of public services. Therefore, with another section 5 order already laid before Parliament and the promise of a further consultation later this year, we expect to see an increasing number of private sector bodies designated as Scottish public authorities for the purposes of the Act over the coming years.
