Freedom of Information (FOI) legislation may be extended to cover more organisations in Scotland after a consultation period was announced last week by the Scottish Government. The rationale behind the proposals is that a number of organisations which are not classed as 'public bodies' under the current Freedom of Information (Scotland) Act 2002 are now carrying out more and more important duties of a public nature, as public services begin to be delivered in new and innovative ways. Two highly publicised examples of this are housing associations and private prisons. It has also been acknowledged that different councils deliver services in different ways, meaning that the amount and types of information that the public has access to are currently not uniform across the country.

The idea has been on the cards for some time. The Liberal Democrat MSP Robert Brown had declared his intention to introduce a private members bill until the SNP administration decided to introduce a consultation period. Parliamentary Business Minister Bruce Crawford wrote to key potential interested parties in June and at that time stated that he would initially consult with ministers in England and Wales. The UK Government, which is charged with FOI legislation for England and Wales, carried out a 3-month consultation on the same issue earlier in the year. The Scottish Government's official discussion paper has just been released.

The Scottish Government wants to consult on the extension of FOI to three areas:

  • Contractors which provide services that are a function of a public authority (including PPP/PFI contractors and private prisons)
  • registered social landlords  
  • local authority trusts or bodies set up by local authorities  

The Scottish Government has laid down a non-exhaustive list of factors that should be taken into account when considering extending FOISA, and invites comments on how these apply to each of the areas above. It proposes that the bodies should be involved in significant work of a public nature (delivering 'core functions of the state'), and receive a significant amount of public funding. Furthermore, the extension would need to add transparency and accountability, but would also need to be measured and proportionate.

A variety of implementation options are being considered and the Scottish Government welcomes comments on the appropriateness of each of these in the three areas: Taking no action; encouraging self-regulation by the relevant bodies; providing improved statutory guidance and extending the act by orders under section 5. If it decides to make any section 5 orders, the Scottish Government has stated that it favours taking an incremental approach.

Whilst the Scottish Government is keen to stress that it is open-minded about what changes it will implement, the discussion paper indicates a reticence to extend coverage to small-scale bodies that do not carry out significant public sector work or for whom the demands of FOISA regulation would be disproportionately burdensome. For example, it has given a preliminary view that contracts for short term or low value might not be considered for inclusion. The discussion paper does, however, acknowledge that the extension of FOISA will not be a simple process of demarcation as there are a number of factors which need to considered.

The discussion paper can be found at http://www.scotland.gov.uk/About/FOI/discussionpaper and the Scottish Government welcomes submissions by 12 January 2009.