On 11 November 2019 all Scottish RSLs will become subject to Freedom of Information. This will give members of the public the right to request information that RSLs hold.

Whilst RSLs are currently required to respond to public requests for environmental information, the draft Order published by the Scottish Government on 08 February will mean that RSLs (and in some cases their subsidiaries) need to provide a wide range of information if requested – subject to that Order being approved by parliament. This is likely to have a knock on effect for obligations of RSLs under Environmental Information legislation (EIR) to which they have been subject since 2014, although it is likely that being covered by FOI will throw a greater spotlight on the sector generally.

As set out in our earlier blog – the question over what information RLSs/subsidiaries should be required to disclose  has been a source of dispute  with concerns raised that tying  the functions to “housing services ” within the meaning of the 2010 Act could cover all or substantially all the activities that an RSL and its subsidiaries may carry out regardless of whether they were or were not “of a public nature”.

The Order now seeks to resolve the position by limiting “housing services” to the core functions of management of Scottish secure tenancies as well as homelessness and management of gypsy/ traveller sites – whether by RSLs or their subsidiaries.

The supply of information by RSLs/subsidiaries to the Scottish Housing Regulator (SHR) in relation to financial well-being/standards of governance will also be subject to FOI. Clarification is being sought on what that entails– although it should be borne in mind that the SHR are also subject to FOI.

Len Freedman

Crucially, RSLs will not need to provide information on factoring, and many  other areas in which an RSL, and more especially a subsidiary, may be involved.  

Given timescales RSLs will want to make the best possible use of the 9 months lead in time.

This will involve a developing thorough understanding of the FOI regime, including identifying what staff will be responsible for handling FOI requests and providing training on matters such as: dealing with requests; exemptions which allow (or even require) information to be withheld; reporting obligations to the Scottish Information Commissioner and the impact the Order will have on EIR.

An important aspect of this is will be how RSLs (and where relevant subsidiaries) balance their new obligations to disclose information with:  

1. their data protection responsibilities under the GDPR;
2. confidentiality provisions in tender, contract and indeed funding documentation in light of what information FOI does and does not require them to disclose.

 As ever early planning is advisable.

• Len Freedman and Eileen Barr are solicitors at TC Young