After much discussion and several consultations over the past few years, Freedom on Information legislation will apply to Scotland's Registered Social Landlords (RSLs) from later this year.
From 11 November 2019, RSLs will be classed as public bodies for the purposes of the Freedom of Information (Scotland) 2002 Act (FOISA). This means that tenants and other individuals will be able to request information from RSLs that is not currently available to the public at large.
The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2019 (the "Order") has been published, which makes provision for the extension of the coverage of FOISA to RSLs. The Order has been made under section 5 of FOISA.
Section 5 of FOISA has provisions that allow the Scottish Ministers to designate private bodies as Scottish public authorities solely for the purposes of FOISA if they appear to carry out functions of a public nature or which provide, under a contract with a Scottish public authority, a service which is a function of that authority.
The extension of FOISA to RSLs has been discussed since the Scottish Government's consultation in 2016. The consultation responses to the 2016 consultation and a further consultation published in 2017 highlighted agreement between stakeholders that RSLs should be subject to FOISA. However, there was also a general consensus that the breadth of the draft order in the 2017 consultation was far too wide.
The key changes to the Order following previous consultation are as follows:
- Factoring – in its final report on the Order, the Scottish Government agreed that factoring is not a function of a public nature and is a private arrangement. Accordingly, the Order excludes the reference to the provision of factoring services so that such information regarding such services is not subject to FOISA;
- SHR regulated activities – the Scottish Government has emphasised that the intention of the Order is not to extend FOISA to functions beyond those of RSLs subject to regulation and oversight by the Scottish Housing Regulator;
- SSTs and SSSTs – the Order has been amended to provide that the management of housing accommodation is only covered by FOISA where the RSL has granted a Scottish secure tenancy or a short Scottish secure tenancy. This makes clear that non-social housing functions of RSLs are not covered by the Order; and
- RSL core functions – the Scottish Government highlights that the core functions of an RSL will be undertaken by the RSL itself and not an RSL subsidiary. The Scottish Government considers that the Order will not have a significant impact on RSL subsidiaries, as they are focused on the provision of non-core and non-social housing related services and activities.
The Scottish Government has tried to resolve the previous issues highlighted in the earlier consultation. However, it will be interesting to see how it actually works in practice and a review of the Order is due to take place one year after it has been introduced.
The challenge is now whether nine months will be enough time for RSLs to prepare for them to be brought within the scope of FOISA by 11 November 2019.
Our top five tips for preparing for the extension of FOISA
We published our top five tips for preparing for FOISA in a previous article when the extension of FOISA was being proposed. They are:
- 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;
- Review internal policy documentation and implement new procedures for a FOISA policy;
- 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 GDPR;
- Develop systems to track requests for information and set internal deadlines and alerts to comply with statutory timescales for responses; and
- 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
If you would like to discuss this issue, please get in touch with a member of our team.