From 11 November this year, the Freedom of Information (Scotland) Act 2002 (FOISA) will apply to RSLs, giving their tenants similar access to information as their local authority counterparts. The changes, which were outlined in a Scottish Government report in February, will also permit members of the general public to request information.

So which RSL activities will have to be disclosed?

Not all RSL activities fall within the scope of FOISA – for example, information about the provision of accommodation for private renting or at mid-market rents, together with other services provided by RSLs (e.g. social care), are not covered.

Those that do fall within FOISA’s scope include: housing services; the management of housing accommodation which is let on a Scottish secure tenancy or short Scottish secure tenancy; and information connected with an RSL’s finances and governance arrangements.

FOISA will also apply to RSLs’ subsidiaries, to the extent they perform relevant activities. This will ensure consistency in access rights, regardless of how functions are allocated within an RSL group.

In principle, salary bands or approximate salaries are disclosable, provided the Data Protection Act 2018 is observed. Whether or not salary information is disclosable will depend upon the wording of the request and the circumstances of the case.

Applications for information

An application under FOISA must be a request for “information” rather than opinion, explanation or justification. RSLs should be aware of their responsibility to identify an application as a request and to respond accordingly – regardless of whether or not the requester has characterised it as such under FOISA. Many requests made under FOISA are not immediately recognised as such, which can lead to reviews/referrals to the Scottish Information Commissioner (OSIC).

So how should an RSL respond to a request for information? There are four key points to remember:

1. Establish whether a request is indeed a request under FOISA and is in scope. If the nature of the request is unclear, the broader duty to provide assistance means that the applicant should be asked for clarification.
2. The costs associated with identifying and providing information for a request should be established at the outset. If they exceed £600 of staff time at £15/hour, an RSL does not need to comply with the request.
3. Searches for information should be comprehensive and conducted on central systems and local files including emails, paper files, handwritten notes, texts, outlook calendar entries. All searches should be logged, in case of requests for review or appeal.
4. Exemptions do apply, whereby a request for information does not have to be complied with – either in its entirety or in part. Some exemptions are absolute and others are subject to a public interest test.  Additionally, requests that are “vexatious” or “repeat requests” do not have to be complied with. Any exemptions must be clearly explained to the applicant.

Timescales, review and appeal

Assuming a request is valid, an RSL must respond within 20 working days.

An applicant who is dissatisfied with the handling of their request can ask for a review, but must do so within 40 working days.

The RSL must then respond to a review request within 20 working days, giving written notice of its decision, and signposting the applicant’s right of appeal to OSIC if they remain dissatisfied. An appeal to OSIC must be made within six months. OSIC will issue a written determination to the applicant and to the RSL. OSIC also has powers to issue information and enforcement notices. Failure to comply with these may leave the RSL vulnerable to a finding of contempt of court.

Both applicants and RSLs have a right of appeal against an OSIC decision to the Court of Session - but only on a point of law. If a determination is made in favour of the applicant or their appeal is upheld, the RSL could incur significant reputational damage and potentially be found liable for the applicant’s legal expenses.

Preparations

The application of FOISA will mean significant new obligations and resourcing requirements, so RSLs should start preparing sooner rather than later. Considerations should include:

• implementing FOISA policies and procedures; training and educating staff;
• ensuring that any appointed agents are familiar with FOISA requirements.

Lisa Kinroy is a senior solicitor in the government, regulation and competition team at Brodies LLP