Freedom of Information (Scotland) Act 2002: Extension of Coverage

Our response

Introduction

SCVO has maintained a clear position on extension of FOI to the third sector. We support the extension of Freedom of Information to include the provision of all public services, irrespective of whether those services are provided by public, private or third sector organisations. In our view the public have a right to know all aspects of how publicly funded services are funded and run. We have suggested previously that the best way to achieve this would be to insert a Freedom of Information clause into all contractual relationships between government and public service providers which requires compliance. This requirement would remain active for the lifetime of the contract and would only apply to information related to the contract. However, we recognise the principle behind the ‘factor-based’ approach that has been outlined in the consultation document and the Scottish Information Commissioners report ‘FOI ten years on: are the right organisations covered’^[i]. It could achieve similar objectives to the contractual approach and ensure that FOI is extended to public functions delivered rather than designations of individual bodies. The Information Commissioner’s report states: “The basic principle is that rights should follow functions. If a function (or service) is provided by a Scottish public authority already subject to the FOI Act, and changes are made to the way in which that function is to be provided in the future, the right to information should migrate with the change, irrespective of the new delivery model.^[ii]” We support this approach, provided that the extension of rights continues to be limited to the public functions and not the organisation itself. The protections provided by section 7(3) of the Act^[iii] ensure that the coverage will be limited to public functions and services. SCVO has consistently opposed the extension of FOI legislation to individual third sector organisations. In our view this would represent a disproportionate burden on charities and social enterprises and would discriminate against them in respect of their non-government and non-public service work. We welcome that the factors outlined by the Scottish Government give consideration to whether coverage would impose a significant administrative burden that may be disproportionate for smaller bodies to comply with.

1)         Do you agree with the proposal to extend freedom of information coverage to contractors who run privately managed prisons? 

We support the proposal to extend FOI coverage to contractors who run privately managed prisons. We agree with the approach that focusses on extending FOI to the consortia and the subcontractors through a description of the functions – allowing the coverage to shift to other bodies should the contractors change.

2)         Do you agree with the proposal to extend freedom of information coverage to providers of secure accommodation for children?  

We support the extension of FOI to providers of secure accommodation, provided that the approach outlined in the consultation is adopted – that is describing the relevant functions in the order. This will also ensure that coverage can shift with changes in provider and the coverage is limited to the delivery of public functions.

3)         Do you agree with the proposal to extend freedom of information coverage to grant-aided schools? 

We support the extension of FOI to grant-aided schools, provided that the approach outlined in the consultation is adopted – that is describing the relevant functions in the order. This will also ensure that coverage can shift with changes in provider and the coverage is limited to the delivery of public functions.

4)         Do you agree with the proposal to extend freedom of information coverage to independent special schools? 

It is unclear from the consultation document what the approach to extending coverage to independent special schools will be. If a similar approach is taken to that of grant-aided schools where the functions to be covered are outlined in the order, then we would support it.

5)         The proposed order would be expected to come into force in spring 2016 – probably on 1 April – so bodies would have to answer FOI requests from that date.  Do you feel this proposed timescale is reasonable to allow bodies to prepare? 

Whether the timescale is appropriate will depend on the support being offered to the organisations to meet their new obligations. Organisations will require time to adapt to the changes in internal procedures and for staff to receive training to deal with FOI requests to the satisfaction of those requesting information. We would hope that this process is already underway and that the Information Commissioner is working with these bodies in anticipation of this change. Extension of coverage must be accompanied by the necessary training and resources to enable organisations to fulfil their new duties without disrupting delivery of their services. If there are additional costs to third sector organisations, then these should be fully covered by an increase to the public funding provided to them.

8)         This latest consultation on extending coverage is part of the process of regularly assessing the scope of Scotland’s Freedom of Information legislation and ensuring coverage remains up-to-date. 

We would welcome proposals in respect of other organisations or types of body which should be considered in future for inclusion within scope of freedom of information legislation. It is unclear in the consultation document why the four types of organisation were selected as priorities for extension. The factor based approach provides evidence for the extension of coverage, but there is no justification provided for why these services have been prioritised over others. We note Nicola Sturgeon MSP’s comments to the Local Government Committee in 2013: ‘I expect to open consultation on a further order next year, which will look at other arm’s-length bodies that are not covered by this order’^[iv]. It is our view that the first priority for further extension of FOI should have been Arms-Length External Organisations. Adopting the factor-based approach in the consultation should have clearly identified ALEOs as meeting all the factors identified by the Scottish Government. Particularly:

• the extent to which particular functions are derived from or underpinned by statute, or otherwise form part of the functions for which the state has generally assumed responsibilities

• the extent of public funding of the activity

• whether the functions are of a nature that would require them to be performed by a public authority if the body did not perform them

• the degree to which the activities of the body are enmeshed with those of the relevant Scottish public authority

ALEOs are public bodies in all but name, therefore the continued exclusion of many of these organisations from FOI must be rectified as soon as possible. Their omission from this consultation is disappointing, given previous commitments which indicated further progress would be made in this area.

Conclusion

SCVO is supportive of the public’s right to access information and the principles of openness, transparency and accountability that underpin that right. We support the extension of Freedom of Information to include the provision of all public services, irrespective of whether those services are provided by public, private or third sector organisations. We support the function approach that has been adopted in the consultation as it extends coverage to the public services but not the other activities of the organisation. As Arms-Length External Organisations in their governance, funding and services delivered are essentially public bodies in all but name – they should have been the first priority for further extension of Freedom of Information coverage.

Contact

Felix Spittal Policy Officer Scottish Council for Voluntary Organisations, Mansfield Traquair Centre, 15 Mansfield Place, Edinburgh EH3 6BB Email: felix.spittal@scvo.scot Tel: 01463 251 724 Web: www.scvo.scot  

About us

The Scottish Council for Voluntary Organisations (SCVO) is the national body representing the third sector. There are over 45,000 voluntary organisations in Scotland involving around 138,000 paid staff and approximately 1.3 million volunteers. The sector manages an income of £4.9 billion. SCVO works in partnership with the third sector in Scotland to advance our shared values and interests. We have over 1,600 members who range from individuals and grassroots groups, to Scotland-wide organisations and intermediary bodies. As the only inclusive representative umbrella organisation for the sector SCVO:

• has the largest Scotland-wide membership from the sector – our 1,600 members include charities, community groups, social enterprises and voluntary organisations of all shapes and sizes
• our governance and membership structures are democratic and accountable - with an elected board and policy committee from the sector, we are managed by the sector, for the sector
• brings together organisations and networks connecting across the whole of Scotland

SCVO works to support people to take voluntary action to help themselves and others, and to bring about social change. Further details about SCVO can be found at www.scvo.scot.   [i] http://www.itspublicknowledge.info/nmsruntime/saveasdialog.aspx?lID=8212&sID=377 [ii] http://www.itspublicknowledge.info/nmsruntime/saveasdialog.aspx?lID=8212&sID=377 [iii] http://www.legislation.gov.uk/asp/2002/13/section/7 [iv] http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=8747&mode=html