The deadline for responses to the discussion paper issued by the Scottish Government on the possible extension of coverage of the Freedom of Information (Scotland) Act 2002 (FOISA) passed on 12 January 2009. Already, some 10,000 Scottish Public Authorities are covered by the Act.
Currently, the Act does not apply directly to Registered Social Landlords (RSLs). However, RSLs are identified in the discussion paper as organisations under consideration for extending FOISA coverage. This is said to be justified because they “are bodies about whom concerns over a lack of coverage have consistently been raised”. The concerns arise in large part from the changes in the way public services are delivered and specifically how the public may have lost rights to access information which they would previously have had under the Act.
The argument put is that RSLs are recipients of public funding which formerly would have been in the budgets of local authorities providing affordable housing. The information held by those local authorities about housing matters would have been available when those authorities became subject to the Act. Tenants of local authorities providing affordable housing are entitled to information about their homes whereas tenants of RSLs are not. Further, many tenants have lost their rights under the Act following housing stock transfers and recent government announcements anticipate a growth in affordable housing in Scotland and in the role of RSLs in delivering these services.
Of course there are many policy arguments both ways. From a legal perspective, however, it will be interesting to see how the Scottish Government exercises its discretion in extending the scope of coverage to bodies such as RSLs. They will not want to depend on – or be caught up in – case law resulting from a raft of challenges to whatever they decide. There is likely to be a lengthy period of extensive consultation with all affected parties following their analysis of the responses to the discussion paper. Indeed, they are required under the Act to undertake such formal consultation.
It will not be any time soon, but it is perhaps only a matter of time before RSLs are brought within the coverage of FOISA. So better to start preparing for it now…
bto will be providing relevant briefing notes and seminars on issues to consider in this eventuality.
For advice on Freedom of Information and Data Protection matters contact:
Contact:
Paul Motion