Why social landlords need to prepare for the extension of FOISA

In June the Scottish Government published its interim report following the consultation on extending coverage of the Freedom of Information (Scotland) Act 2002 (FOISA) to Registered Social Landlords (RSLs).

Freedom Of Information Social Housing Law Foi Lawyer Scotland

With the majority of responses to the consultation in favour of extending FOISA to RSLs, they should consider taking steps in order to prepare. There are many practical and financial implications and RSLs should already be considering how FOISA will impact on internal operations.

The Scottish Government has announced that its formal response to the consultation will be issued this autumn following further engagement, including with key stakeholders.

Here we look at what the extension of FOISA would mean, and and our top tips for being prepared.

Where England goes, will we follow?

While not bound by the legislation which applies down south, it's instructive to keep an eye on how the same issue has developed. In July 2017 there was a first reading of the Freedom of Information (Extension) Bill 2017 in the House of Commons.

This Bill makes providers of social housing public authorities for the purposes of the Freedom of Information Act 2000. It also makes information held by persons contracting with them subject to the Act 2000 and extends the powers of the Information Commissioner.

The second reading of the Bill is set for June 2018.

What does Freedom of Information mean?

FOISA came into force on 1 January 2005 and places an obligation on Scottish public authorities to release information, which they hold, or is held on their behalf, upon request by a member of the public. Scottish public authorities must disclose the requested information within a statutory time limit of 20 working days, unless one or more of the exemptions in FOISA applies.

Requestors who are dissatisfied with responses to their requests under FOISA have the right to ask an authority to review its decision and also have a right of appeal to the Scottish Information Commissioner.

Extension to RSLs – the interim report

The Scottish Government's interim report commented on the proposal to bring RSLs within the scope of FOISA by means of an order under section 4 of FOISA. This proposal was considered not to be appropriate on the basis that RSLs are not part of a Scottish Administration or a Scottish public authority with mixed functions or no reserved functions.

Accordingly, the likely approach will be for the Scottish Ministers to make an order under section 5 of FOISA, which designates bodies as a Scottish public authority solely for the purposes of FOISA. The Scottish Ministers will make such an order where it appears that bodies are exercising functions of a public nature or providing, under a contract with a Scottish public authority, a service which is a function of that authority.

A number of responses referred to the upcoming legislation to classify RSLs as 'private' organisations following the recent reclassification by the Office for National Statistics of RSLs as public non-financial corporations. Many opined that extending FOISA to RSLs around the same time as this legislation is introduced would cause confusion. However, the Scottish Government did not consider that the proposals under FOISA would "cast any doubt on the status of RSLs as private bodies".

The report also acknowledged the significant concerns for RSLs regarding the practical impact of the extension of FOISA. In particular, the financial costs to ensure that RSLs implemented appropriate training, systems and guidance to comply with FOISA was noted by the Scottish Government in its report as meriting further information.

This also has an impact on the proposed commencement date of 1 April 2018, with most of the responses from RSLs suggesting a later date of 1 April 2019 in order to address financial concerns with RSLs also needing to ensure compliance with the new General Data Protection Regulation (EU) 2016/679 (the GDPR) on 25 May 2018.

Preparing for FOISA

Currently, RSLs are subject to the Environmental Information (Scotland) Regulations 2004 (the EIRs), which require RSLs to respond to requests for information which falls within the definition of "environmental information" under the EIRs, in a similar manner to that required under FOISA.

Accordingly, most RSLs will have policies and procedures in place to deal with requests for environmental information under the EIRs and these can be extended to deal with requests for information under FOISA.

Our top five tips for preparing for the extension of FOISA are as follows:

  1. Consult with staff and departments within the RSL to determine where and how information is stored to ensure ease of access when requests are received;
  2. Review internal policy documentation and implement new procedures for a FOISA policy;
  3. Deliver staff training in order to ensure awareness of the different types of request and applicable legal regimes – i.e. how to differentiate between requests under FOISA, the EIRs and requests for access to personal data under the DPA and thereafter the GDPR;
  4. Develop systems to track requests for information and set internal deadlines and alerts to comply with statutory timescales for responses; and
  5. Adopt internal review procedures to deal with requests for review where a requestor is dissatisfied with the RSL's response to their request for information.

Get in touch

It is likely that if the extension of FOISA is announced, RSLs will not have much time to prepare and so we would recommend that steps are taken now to reduce the impact of FOISA (and also the GDPR) in the future.

If you would like to discuss this issue, please get in touch.