View source for Consultation on Extension of Coverage of Freedom of Information (Scotland) Act 2002

Can also be viewed here: http://www.scotland.gov.uk/Resource/Doc/334859/0109477.pdf
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On 28 July 2010, the Scottish Government announced that it would consider extending the coverage of the [[Freedom of Information (Scotland) Act 2002]] ('the Act') via a "Section 5" Order to the following organisations:
:* contractors who run privately managed prisons and provide prisoner escort services;
:* leisure, sport and cultural trusts and bodies used by local authorities;
:* the Glasgow Housing Association;
:* the Association of Chief Police Officers in Scotland;
:* contractors who build and maintain schools;
:* contractors who build and maintain hospitals; and
:* contractors who build, manage and maintain trunk roads under private finance contracts.

It sought the views of the above bodies (or their representatives), and the views of any other interested party.  The information below is the response to the consultation exercise from the team at WhatDoTheyKnow.com, and they have given it the reference number FOI/41.

The WhatDoTheyKnow team actively campaigns for expansion of Freedom of Information to cover more public organisations. We list a number of bodies not formally subject to FOI on WhatDoTheyKnow.com, some of which are present on the grounds they are substantially publicly funded, including:
:* {{WDTK|Association of Chief Police Officers in Scotland|acpos}}
:* {{WDTK|Glasgow Housing Association|gha}}

* Consultation document pack: http://www.scotland.gov.uk/Publications/2010/07/20123725/0
* Online response form: http://www.scotland.gov.uk/consultations/foi/extension_of_foisa.asp
* Reply due:  02 November 2010
* [[Consultation on Extension of Coverage of Freedom of Information (Scotland) Act 2002 - cleaned up]]


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==Whatdotheyknow volunteers final response==

'''Organisation:''' (if applicable):  WhatDoTheyKnow.com
'''Postal Address:'''  c/o mySociety, PO Box 839, Oxford, OX1 9LG, United Kingdom
'''E-mail:'''  team[...@...]whatdotheyknow.com
'''Telephone Number:'''  n/a

1. Are you reponding as: on behalf of a group or organisation

3. ON BEHALF OF GROUPS OR ORGANISATIONS
Are you also content for your response to be made available?  Yes

4. SHARING RESPONSES/FUTURE ENGAGEMENT
We will share your response internally with other Scottish Government
policy teams who may be addressing the issues you discuss. They may
wish to contact you again in the future, but we require your
permission to do so. Are you content for the Scottish Government to
contact you again in the future in relation to this consultation
response?  Yes

==A: Contractors who run privately managed prisons and provide prisoner escort services==
We welcome the proposal to extend the coverage of the Freedom of Information (Scotland) Act 2002 to include contractors who run privately managed prisons and provide prisoner escort services. We agree with the arguments in support of adding them, and with the conclusions of your analysis, including the Business and Regulatory Impact Assessment.

==B: Contractors who build and/or maintain schools==
We welcome the proposal to extend the coverage of the Freedom of Information (Scotland) Act 2002 to include contractors who build and/or maintain schools. We agree with the arguments in support of adding them, and with the conclusions of your analysis, including the Business and Regulatory Impact Assessment.

We believe that a lower threshold for coverage should apply, as £20 million / 10 years will exclude a significant number of contractors, some of which could be working on more than one project at a time that would otherwise bring them in scope. We would propose that a cumulative project amount of £10 million, with projects lasting 3
years and over be more appropriate. We don't believe this will have a major impact on the industry, especially given the expectations of low numbers of FOI requests, but it will significantly increase transparency (especially for environmental information) of those bodies. We believe that £10 million is a significant sum, and
suppliers of this scale should be open to scrutiny of how they spend public money.

==C: Contractors who build and maintain hospitals==
We welcome the proposal to extend the coverage of the Freedom of Information (Scotland) Act 2002 to include contractors who build and/or maintain hospitals. We agree with the arguments in support of adding them, and with the conclusions of your analysis, including the Business and Regulatory Impact Assessment.

We believe that a lower threshold for coverage should apply, as £20 million / 10 years will exclude a significant number of contractors, some of which could be working on more than one project at a time that would otherwise bring them in scope. We would propose that a cumulative project amount of £10 million, with projects lasting 3 years and over be more appropriate. We don't believe this will have a major impact on the industry, especially given the expectations of low numbers of FOI requests, but it will significantly increase transparency (especially for environmental information) of those bodies. We believe that £10 million is a significant sum, and suppliers of this scale should be open to scrutiny of how they spend public money.

==D: Leisure, sport and cultural trusts and bodies established by local authorities==
We welcome the proposal to extend the coverage of the Freedom of Information (Scotland) Act 2002 to include leisure, sport and cultural organisations established by local authorities. We agree with the arguments in support of adding them, and with the conclusions of your analysis, including the Business and Regulatory Impact Assessment.

We believe there is a potential loophole in the the draft order. The words "Bodies established or created by a local authority" could exclude situations where:

(i) a local authority identified an existing trust or charity with relatively little income and subsequently directs substantial funding through it.
(ii) a number of pubic authorities and voluntary groups work together to establish a trust which subsequently receives the vast majority of its funding from one or more public authorities.

We see no reason to exclude bodies/trust which were not established by local authorities but which presently receive the majority of their income from public funds.

Restricting the functions for which these bodies are subject to the Act to "Functions in terms of section 90 of the Local Government (Scotland) Act 1973( 5), section 14 of the Local Government and Planning (Scotland) Act 1982( 6), and section 20 of the Local Government in Scotland Act 2003( 7)." would appear to us to be too narrow. In the case of a trust receiving all or almost all of its income from public bodies there is no reason why the public should not
have a general right of access to information about all aspects of the trust's activities subject to the exemptions set out in the Act. It would be helpful to ensure that the list of functions for which the trusts are subject to the Act includes 'the receipt and expenditure of public funds' as such trusts may attract funding from public bodies
other than local authorities.

==E: Glasgow Housing Association==
We welcome the proposal to extend the coverage of the Freedom of Information (Scotland) Act 2002 to include Glasgow Housing Association. We note that Glasgow Housing Association already operates within the spirit of the Act.

In Weaver v. London and Quadrant Housing Trust [2008] the Court found that social rented housing sector is "permeated by state control and influence with a view to meeting the Government's aims for affordable housing, and in which RSLs work side by side with, and can in a very real sense be said to take the place of, local authorities". It is therefore reasonable that the Freedom of Information Act (Scotland) 2002 should apply to all housing associations just as it applies to local authorities.

==F: The Association of Chief Police Officers in Scotland (‘ACPOS’)==
We welcome the proposal to extend the coverage of the Freedom of Information (Scotland) Act 2002 to include the Association of Chief Police Officers in Scotland. We note that ACPOS already operates within the spirit of the the Act. This would also bring ACPOS in line with the UK Government bringing ACPO under the Freedom of Information
Act 2000. We agree with the arguments in support of adding ACPOS, and with the conclusions of your analysis, including the Business and Regulatory Impact Assessment.

==G: Contractors who build, manage and maintain trunk roads under private finance contracts==
We welcome the proposal to extend the coverage of the Freedom of Information (Scotland) Act 2002 to include road construction and maintenance contractors.

The effect of extending the coverage of the Act to these bodies would also ensure they are covered by the access to information provisions of the Environmental Information (Scotland) Regulations 2004 and INSPIRE (Scotland) Regulations 2009. These bodies have a major impact on the environment, and will be responsible for looking after large amounts of public land, often in sensitive rural areas. Allowing public access to the environmental information and geo-spatial datasets that they hold will ensure transparency and allow the public to hold them to account.

The consultation paper states that:
"Whilst operations such as construction and facilities management are usually sub-contracted, the sub-contractors will be holding information on behalf of the main contractor and so the right to request information will extend beyond the information held immediately by the principal contractor."

We are concerned that there may be a risk of disclosure avoidance tactics being used to protect information held by by subsidiaries or parent companies of the Special Purpose Vehicle legal entities set up to run the contracts to be deemed as information "held on behalf of".  We would recommend that subsidiaries or parent companies of the SPVs
be included in scope for holding information relating to "Construction of new roads and management and maintenance of such roads" as described in the Draft Section 5 Order.

The Draft Section 5 Order states:
"The contract has a value of not less than £90 million and a duration of not less than 30 years."

We believe that this threshold is set too high, for example it would exclude a £250m / 25 year contract. In addition, those bodies who have multiple road contracts with the Scottish Government that only cumulatively meet the threshold will be excluded. We would propose that a cumulative contract amount of £50m be used as the threshold,
with a minimum contract duration of 10 years. A contractor with a ten year contract has control of a public contract for far longer than the term of an elected representative who serves just four years in the
case of the Scottish Parliament before having to seek re-election.

Apart from points raised above, we agree with the major arguments in support of adding them to the Act, and with the other conclusions of your analysis, including the Business and Regulatory Impact Assessment.

[[Category:Whatdotheyknow.com responses to consultations]]