What’s New?
On 10 March 2015, the Data Protection Act 1998 was amended to outlaw enforced subject access requests. The practice involves compelling individuals to request disclosure of their personal information from third parties and to reveal the results. As a result of the change in law, employers are no longer able to require potential employees to reveal information about criminal convictions that they may have.
More information can be found here.
Latest Commentary - Ten Years of Freedom of Information
The Scottish Information Commissioner has recently laid a special report before the Scottish Parliament to mark ten years of the Freedom of Information (Scotland) Act 2002 (FOISA). The Act came into force on 1 January 2005 and gives individuals a right to access information held by public authorities in Scotland.
The report, entitled, “FOI 10 Years On – are the right organisations covered?” lauds FOISA as a success story and celebrates the openness, transparency and accountability which it promotes. However, concern is also raised that rights to freedom of information are not keeping pace with the changing landscape of public service delivery in Scotland, that the scope of FOISA has reduced and that, ultimately, the public now has less access to information than it did a decade ago.
The report suggests that changes to the way that some public functions are delivered in Scotland have led to this gradual erosion of rights. One such example is social housing. In the past, this was administered by councils that were subject to freedom of information rights but more than 15,000 of such households have lost freedom of information rights since 2005 because their landlords have changed from local authorities to housing associations that are not covered by FOISA. This does not solely affect tenants but extends to information sought by the wider public.
The outsourcing of public contracts to suppliers is also highlighted as a contributing factor to the decline in freedom of information rights and concern in this regard is echoed by the UK Information Commissioner’s Office. There have been calls to place suppliers that perform “significant” public service contracts under the scope freedom of information rules. Some have gone further and would prefer to see freedom of information legislation throughout the UK expanded such that all contract-related information held by a contractor in connection with a public service contract is considered to be held on behalf of the public authority and is, therefore, subject to the legislation.
The report acknowledges that an order under section 5 of FOISA allows the Scottish Ministers to designate an organisation as a Scottish public authority for the purposes of the legislation. However, these powers have been “woefully underused”, partly due to confusion of what actually constitutes a “public function” under the wording of FOISA. As a result, intentions to extend freedom of information rights to completely new areas have failed to materialise.
A number of recommendations are made in the report in response to the above concerns, including:
- automatic consideration of the migration of freedom of information rights/duties to bodies taking on functions of public authorities;
- reviewing and reinstating, under section 5 of FOISA, the rights to access information that have been lost;
- making immediate section 5 orders in relation to social housing;
- creating, maintaining and publishing a register of Arm’s Length External Organisations and bodies registered under section 5 and, therefore, subject to FOISA; and
- developing a factor-based approach to the extension of freedom of information to functions “of a public nature”. This would involve, among other criteria, consideration of whether or not the organisation is taking the place of a public authority i.e. “the functions are of a nature that would require them to be performed by a public authority if the organisation did not perform them.”
The report has been welcomed by the Scottish Government and FOISA has since been extended to cover arm’s length culture, sport and leisure trusts. It remains to be seen whether any further commitments to extend freedom of information will be made and, more importantly, acted upon.
