The Scottish Information Commissioner has recommended that Freedom of Information (FOI) laws should be extended to cover social landlords. The issue is also the subject of a petition presented to the Scottish Parliament.
The extension of FOI to cover Scotland's social landlords, it is claimed, will lead to greater accountability, transparency and improvements in decision-making.
But does this not already exist?
Social landlords already actively make information available, whether in response to frequent ad hoc enquiries or on their websites. As of June last year, they are also subject to the Environmental Information (Scotland) Regulations ("EIRS"), which provide for access to environmental information held by or on behalf of social landlords, including information relating to: stock condition surveys; regeneration projects; building programmes; repair works; tender documentation; and photographs.
Social landlords are subject to more scrutiny than ever before.
Does social housing need to be more transparent?
The social housing sector is heavily regulated. The Scottish Housing Regulator's Regulatory Framework and the Scottish Social Housing Charter require landlords to be open and transparent in conducting their activities. They must report on compliance to the Regulator in the form of, for example, the annual return on the Charter, the results of which are published on the Regulator's website. The Regulator is itself subject to FOI and the information underlying the published results may be accessed by making an FOI request to the Regulator, if desired.
A dissatisfied service user can also use the landlord's complaints policy, which could lead to action from the Scottish Public Services Ombudsman if the complaint is not resolved to the user's satisfaction. Failure to provide information could be considered to be non-compliance with a Charter outcome and may be reported to the Regulator as a "significant performance failure".
A further burden
There is therefore sufficient pre-existing impetus on social landlords to make as much information available as possible. Throwing FOI into the mix will only add to the regulatory burden and may, in the present author's opinion, give rise to confusion for social landlords and service users alike.
For example, would a tenant dissatisfied with the progress of a repair rely on the landlord's complaints policy or FOI to resolve the issue? How does a social landlord "diagnose" such situations? Should the complaint be handled both under the complaints policy and the FOI process? An FOI request need not make reference to the fact that it is an FOI request. All that it is required is for the applicant to provide his / her name, address and a description of the information to which access is required.
While the ultimate outcome for the tenant under both routes should be identical – with onward appeal to an independent regulator (the Ombudsman or the Commissioner, as the case may be) – it is not difficult to envisage situations where social landlords' staff may be confused as to which of the two routes should be used and may opt for the comfort of the familiar complaints route when FOI ought to be engaged.
Are landlords ready for FOI?
Handling and responding to FOI requests involves a significant expenditure from cost and human resources points of view. Scottish government research estimates the average cost of responding to an FOI request at £231 and involving seven hours of staff time. While social landlords may impose a fee for responding to FOI requests, the maximum fee is £50 and for that, applicants get at least 40 hours of staff time – the best part of a working week. It is likely that FOI will result in scarce resources being diverted away from core service delivery, which will likely have an effect on landlords' investment in new homes and regeneration projects.
Public authorities were given almost three years from the passing of the Freedom of Information (Scotland) Act 2002 before it came into force in on 1 January 2005. This "grace period" was granted to allow them to implement records management policies (to ensure that records were catalogued and categorised in a manner that allowed FOI requests to be responded to within statutory timescales), develop publication schemes (setting out the information routinely published by public authorities and where and how it could be accessed) and put in place the necessary internal policies and procedures (including a review procedure).
If the scope of FOI is extended in Scotland, social landlords must equally be given time to adjust. In particular, staff will require training on FOI and how to recognise and handle requests, a charging scheme must be developed and template documentation will need to be prepared to ready landlords for the burgeoning FOI floodgates. Staff will also need to be prepared to provide advice and assistance to applicants and be encouraged to actively disseminate information using the publication scheme. Putting more information into the public domain will likely reduce the number of FOI requests received.
The present author's experience of advising social landlords highlights that they are only just coming to terms with the EIRs and are still in the process of putting the necessary policies, training and procedures in place.
Despite the Commissioner's report and the petition, the Scottish Government currently has no plans to extend the coverage of FOI to include social landlords. It is, though, committed to further consultation in the spring, which may result in an extension order being introduced in the autumn of 2015, depending on the response to the consultation.
Any such order may only extend FOI to large scale voluntary transfer housing associations or it may apply across the board. Whatever happens, the months ahead will give rise to heated and polarised debate on the issue.
Get in touch
Kelly Sleight is a Solicitor in Harper Macleod's Public Sector & Housing team, in particular providing advice and assistance in relation to regulatory, governance and compliance issues. For further information on this subject please get in touch.