On Tuesday (1st April 2014), more bodies in Scotland will be made subject to the Freedom of Information (Scotland) Act 2002 (‘FOISA’).
The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2013 has been made under section 5 of FOISA which gives the Scottish Ministers the power to add additional organisations to the list of Scottish Public Authorities. Section 5(2) sets out the criteria for making such an order.
The organisation must :
“(a) appear to the Scottish Ministers to exercise functions of a public nature; or
(b) are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority.”
The new order extends FOISA to organisations created by councils to delivering leisure and sporting facilities. More precisely, in the words of the order, bodies:
“(a) established or created solely by one or more local authorities;
(b) whose functions on behalf of any of those authorities include developing and/or delivering recreational, sporting, cultural or social facilities and activities; and
c) which in carrying out those functions is financed wholly or in part by any of those authorities”
There is no legally definitive list of additional bodies, which will become subject to FOISA under the S.5 order on 1st April. It is for each organisation to satisfy itself if it meets these conditions.
However, pursuant to a FOISA request, the Scottish Information Commissioner has released, amongst other things, a list of potential bodies drawn up by her office in March 2013 while the draft S.5 order was being debated in the Scottish Parliament. Examples from the list include Culture and Sport Glasgow , Inverclyde Leisure, Sport Aberdeen and Fife Golf Trust. You can find more here. It is important to note that the Commissioner has issued this list with the caveat that it does not constitute a legally definitive list for the purposes of the order.
The Scottish Government intends to consult further in due course on extending freedom of information coverage to other arm’s length organisations.
The order comes after a consultation in July 2010 by the Scottish Government on whether the coverage of FOISA should be extended to the following bodies:
- Contractors building and maintaining hospitals and schools
- Contractors operating privately managed prisons, providing prisoner escort and court custody services
- Contractors operating and maintaining trunk roads under private finance contracts
- The Glasgow Housing Association (GHA)
- The Association of Chief Police Officers in Scotland (ACPOS)
- Bodies created by local authorities to provide leisure, culture and sport services
Interesting how the Scottish Government decided not to make contractors subject to FOISA. In the rest of the UK, the debate on this issue has been reignited recently. The Government has once again flip flopped and mixed messages have come out about contractors being made subject to the Freedom of Information Act 2000 (FO)).
Initially there was talk of extension of FOI to the private sector. Now it is about extension of FOI through a new code of practice. This will be the subject of one of two new consultations announced recently.
It remains to be seen who will be the first to say yes to more openness and transparency for the private sector!
Think you know about FOISA? Have a go at the FOISA test.
Act Now Training has now designed a new certificated course; the Practitioner Certificate in the Freedom of Information (Scotland) Act 2002. The course is endorsed by the Centre for FOI based at Dundee University.
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