The Freedom of Information Act 2000 came into force on 1 January 2005. This Act, together with its Scottish equivalent the Freedom of Information (Scotland) Act 2002, created for the first time a right on the part of the general public to request and receive information held by public authorities.

Under the FOI legislation a "public authority" is either: 1) one of the finite list of bodies set out in a Schedule to the Act, which can be amended from time to time; 2) a company wholly owned by another public authority; or 3) a body which has been designated as a public authority by an order made under section 5 of the Acts.

The power to designate bodies as public authorities under section 5 of the Acts can only be used in relation to bodies that are not able to be added to the list of bodies in Schedule 1 – that is, they must not be a public body or the holder of public office – but must either exercise functions of a public nature or, by means of a contract with a public authority, provide services which are a function of that authority.

So far this power has not been exercised. In December 2005 the Scottish Government issued a consultation paper, entitled "Freedom of Information (Scotland) Act 2002 - One Year On: a Consultation on the operation of the Act after one year in force," which sought views as to the operation of that power. The consultation set out proposals in relation to how this power should be used. In particular, it set out draft criteria for its operation. These included, for example, criteria concerning the level of statutory governance of the activities undertaken by the body and whether the government would carry out these activities if the body did not undertake them. That consultation closed in March 2006 and the Scottish Government has indicated that it will be in a position to consult directly with those bodies that Ministers decide are suitable for designation under the Scottish Act by the end of this year.

Late last month the UK Government issued its own consultation on the designation of additional public authorities under the Act. This consultation is in five parts and looks at:

  • whether the power in section 5 should be used to extend coverage of the Act at all;
  • possible criteria that it might be appropriate to use to decide whether an organisation should be covered by the Act because it is exercising functions of a public nature;
  • possible criteria for deciding whether an organisation should be covered by the Act because it provides services under contract with a public authority whose provision is a function of that authority;
  • the requirement, set out in section 7 of the Act, to specify which of a body's functions or services are to be covered by the Act and how this might be implemented in practice; and
  • invites suggestions for organisations that should be considered for coverage under any increase in information access.

While freedom of information legislation has the commendable aim of creating a more open and accountable public sector, compliance with the legislation can in some circumstances be fairly onerous. It is likely to be especially so for companies and other bodies without the mechanisms of government behind them. Although both the Scottish and UK Acts impose an obligation on Ministers to consult prior to designation, it is important to remember that there is no requirement that a person or body actually consent to being designated.

The UK Government's consultation closes on 1 February 2008. Copies of the consultation paper are available on the Ministry of Justice website at: http://www.justicegov.uk/publications/cp2707.htm