The Scottish Government published a consultation document in December 2016, seeking views on whether the Freedom of Information (Scotland) Act 2002 (FOISA) should be extended to Scottish registered social landlords (RSLs). Consultation responses have now been received, 73 of which have been published.
Analysis of the responses
The overwhelming view (over 70% of published responses) is that FOISA should be extended to RSLs, with the majority (almost 60% of published responses) favouring extension from 1 April 2018. Indeed, 6 respondents suggested that FOISA ought to be extended earlier than April 2018.
The principal reasons favouring extension highlighted by respondents are:
RSLs undertake essential functions of a public nature, which are derived from statute and are publicly funded, and which would otherwise be performed by local authorities;
the transfer of housing stock from local authorities to RSLs has negatively impacted information rights, making it difficult for individuals to find out where information is available;
individuals have experienced difficulties in obtaining information from RSLs, particularly under the Environmental Information (Scotland) Regulations 2004 (EIRs);
the status quo gives rise to confusion and inconsistency in that RSLs are regarded as public bodies so far as the Scottish Public Services Ombudsman (SPSO) and the EIRs are concerned, but not for FOISA. The Scottish Social Housing Charter (SSHC) does not go sufficiently far in this regard in that it does not compel the disclosure of information in the form of an enforceable right of access, and does not provide for an independent regulator, such as the Scottish Information Commissioner (SIC);
extension is unlikely to yield additional burden for RSLs, as the processes and procedures are already in place to deal with requests for information. The additional administrative burden will be limited, from a financial perspective, by the cost cap of £600;
extension will give rise to more meaningful engagement with wider society, as researchers, third sector organisations and others with an interest in housing issues (aside from tenants) will have access to more information to facilitate greater involvement in social housing matters; and
non-RSL subsidiaries should also be covered because they hold relevant information, and failure to extend could result in functions being devolved to subsidiaries to prevent information being publicly available under FOISA.
The reasons put forward by respondents resisting extension are:
RSLs are open and transparent organisations by default that already act in accordance with the spirit of FOISA by proactively providing information on request, publishing it on their websites and within the annual report on the SSHC. Evidence does not indicate a general dissatisfaction amongst tenants in this respect;
extension will divert RSL resources away from their core functions towards dealing with FOISA requests from journalists and researchers. The costs associated with this will likely be absorbed by increasing rents;
those in favour of extension adopt an overly-simplistic view of RSL finance, most of which comes from private funding and rent income, and not public grant;
RSLs are already subject to significant levels of regulation by the Scottish Housing Regulator, the Office of the Scottish Charity Regulator (for charitable RSLs), the Care Inspectorate (for RSLs providing care services) and the SPSO (for complaints). Adding FOISA to this mix will further complicate the regulatory environment;
extension should not apply to non-RSL subsidiaries because they undertake commercial activities that are not of a public nature; and
it is inappropriate to classify RSLs as Scottish public authorities (SPAs) at a time when the Scottish Government is introducing legislation to define them as private bodies for the purposes of the National Accounts.
What next?
Consultation responses are currently being analysed, after which the Scottish Government will issue a formal response paper. If a decision is taken to extend, then an order under Section 5 of FOISA will be laid before the Scottish Parliament. The order could extend FOISA to all RSLs, irrespective of size, or it might only cover RSLs exceeding a specified stock threshold – although the consultation document noted that the Scottish Government has decided to dispense with the latter.
In my view, extension is inevitable. There have been numerous such consultations over the previous 7 years, and the backdrop to the present consultation, including a public petition presented to the Scottish Parliament, would indicate that extension is more, rather than less, likely. Moreover, RSLs have been subject to the EIRs, which provide for a right of access to environmental information, since June 2014, when the SIC determined that RSLs were SPAs for EIRs purposes. Even at that time, FOI for RSLs had long been on the agenda and the SIC’s decision only served to provide additional impetus for extension. The present consultation is the first time that extension has been on the table since the SIC’s EIRs decision.
What RSLs should do now
In the event of – and in preparation of – extension, I would recommend that RSLs:
deliver staff FOISA training (initially and on an ongoing basis) to assist in recognising FOISA requests (as distinct from requests for personal information under the Data Protection Act 1998 and the new General Data Protection Regulation (GDPR) and requests for environmental information under the EIRs) and to handle requests in accordance with the law;
implement an internal FOISA policy and other template documentation;
be ready to provide advice and assistance to prospective applicants on how to frame requests and what information is held that might satisfy their requests;
direct requests to the appropriate person(s) internally. It is likely that RSLs will need to appoint a dedicated Data Protection Officer under the GDPR, and this person could also assume responsibility for FOISA compliance;
comply with the Scottish Ministers’ Codes of Practice on the Discharge of Functions by SPAs and Records Management, respectively;
develop data management systems to log and track requests;
introduce publication schemes, setting out the types of information published and how it can be accessed;
maintain records in a manner that is conducive to the efficient retrieval of information to enable RSLs to respond to requests promptly and, in any case, within the 20 working day statutory time limit;
devise a schedule of charges, if it is intended to impose charges for providing access;
issue robust and detailed responses to requests that can withstand the scrutiny of the SIC and the media;
implement review processes, if applicants are dissatisfied with responses received, and integrate these with existing complaints handling processes;
be aware of the role of the SIC and the SIC’s enforcement powers; and
review procurement documentation to include references to FOISA.
SPAs had almost 3 years to do this when FOISA first came into force. If the majority view is followed and FOISA is extended from next April, RSLs will have less than a year to prepare. This may present difficulties for RSLs that have already set their budgets and have not allocated funds to the aforementioned preparatory work. It is submitted that a commencement date of 1 April 2019 would be a more pragmatic approach, although RSLs who have taken steps since 2014 towards EIRs compliance should already be well on the way so far as FOISA preparation is concerned.
Daradjeet Jagpal (daradjeet@infolawsolutions.co.uk) is legal consultant and director of Information Law Solutions, an independent consultancy providing advisory, training and audit services in Data Protection and Freedom of Information (infolawsolutions.co.uk).
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