The social housing sector already prides itself on being open and accountable to tenants. But from 11 November 2019, registered social landlords (RSLs) in Scotland will acquire new transparency obligations under the Freedom of Information (Scotland) Act 2002 (FOISA).
After years of debate and the robust recommendation of successive Scottish Information Commissioners, that housing associations should be in scope of FOISA, a designation order (under Section 5) adds RSLs to the list of public authorities in Schedule 1 of FOISA. The last such order (S.I. 2016/139) came into force on 2ndMarch 2016and extended coverage of FOISA to contractors overseeing and managing private prisons, bodies providing secure accommodation for children and young people, grant-aided schools, independent special schools and Scottish Health Innovations Limited.
Housing associations are already subject to the Environmental Information (Scotland) Regulations 2004 (EISR) as their scope is broader than FOISA. However, awareness of the EISR is low among the public, and even some housing associations were probably unaware of them. Many of the types of requests which RSLs are likely to receive – around construction and repairs for example – will continue to fall under the EISRs.
Unlike other Scottish public authorities, the scope of FOISA does not apply to all the activities that an RSL may undertake. The designation order only extends FOISA to “housing services” as defined in the Housing (Scotland) Act 2010, which would include activities in support of:
- the prevention and alleviation of homelessness,
- the management of housing accommodation (but only where RSL has issued a Scottish secure tenancy or short SST)
- the provision and management of sites for gypsies and travellers
Other activities undertaken by RSLs – such as factoring for owner-occupiers, repairs and maintenance for non-tenants and care services – would not be in scope. Identifying how much of the organisation is subject to FOISA will be an ongoing challenge for RSLs.
And there is a double whammy for RSLs. Under section 7 of the Data Protection Act 2018, schedule 1 of FOISA is the basis in Scotland for designating public authorities under GDPR. Therefore, from November, RSLs will be subject to the obligation, under Article 38 and 39 of GDPR, to designate and provide appropriate support for a Data Protection Officer. While many larger RSLs have already done so, this is going to be a challenge to resource for smaller associations.
So, in preparation for November, RSLs should “Act Now” to:
- Gain senior management support and buy-in for the compliance tasks;
- Identify and designate a Data Protection Officer if they haven’t already done so;
- Designate a lead officer for FOISA compliance;
- Develop procedures and guidance for staff, including a log for tracking requests and templates for responses;
- Ensure training is in place: Specific compliance training for DPOs and FOI leads and awareness training for all staff;
- Review records management procedures to ensure appropriate retention periods are applied and records are retrievable;
- Inform tenants and the wider public of their rights, including having a guide to information on their website.
Our FOISA expert, Frank Rankin, is delivering a free webinar for RSLs in Scotland to bring them up to speed with FOISA and what they need to do now before the implementation date. Book now as places are limited.
Act Now can support RSLs with our range of public training courses, including the only FOISA practitioner certificate course and our GDPR practitioner course, geared towards supporting DPOs. We can also provide in-house training and consultancy support.