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Scottish Government announces extension of FOI to private sector


The Scottish Government has plans to extend Freedom of Information (FOI) legislation to private bodies who carry out some of the functions of public bodies.

Minister for Parliamentary Business Bruce Crawford has said that a formal consultation on the issue will be conducted next spring and that the Scottish Government wants to extend legislation to cover building contractors on large public projects; private prison operators; leisure and culture trusts set up by local authorities; the Glasgow Housing Association; and the Association of Chief Police Officers in Scotland.

The Scottish Government had previously said it might extend the FOI (Scotland) Act but today's announcement is firmer and more detailed than previous statements on the issue.

Crawford said that a previous informal consultation on the issue had revealed support for the move. "Responses to a discussion paper which looked at the options for extending coverage of the FOI Act beyond the public sector supported the principle of greater openness," he told the Holyrood Freedom of Information Conference in Edinburgh. "I now intend to formally consult with a range of organisations about whether it is appropriate for them to be covered by FOI."

"It is important that organisations who deliver key public services for the people of Scotland operate transparently so the public can be reassured we are getting high quality services and value for money," he said. "I am also sympathetic to the view that people should be able to 'follow' the expenditure of public money through their access to information, in particular in relation to PFI/PPP contracts which tend to be high value and long term."

FOI law expert William Malcolm of Pinsent Masons, the law firm behind OUT-LAW.COM, said that the news meant that the Scottish and UK Governments were now pursuing differing FOI policies.

"The announcement represents the most significant change to the scope of FOI law in Scotland since the Act's introduction," he said. "The Scottish Government approach is now out of step with the UK Government approach where plans to extend the legislation are less extensive."

Organisations to be consulted will want to reflect carefully on how best to respond," he said. "Private sector organisations might agree with the need to be open with how public funds are spent but might question whether extension to legislation is the best way to achieve that."

"They may have concerns about the costs of compliance and whether that will leave them at a competitive disadvantage in challenging economic times," he said. "Companies will need to work through their views on the costs of compliance and whether being subject to the Act is the best way to achieve openness and transparency."

The Scottish Ministry of Justice first consulted on the extension of FOI legislation to the private sector after Scottish Information Commissioner Kevin Dunion ordered the publication of a private finance initiative (PFI) contract between the NHS and the builders and operators of the Edinburgh Royal Infirmary.

"Contracts can be entered into over a prolonged period of time, 20 or 30 years, spending billions of pounds of public money in the expectation that not a single word of that contract, the terms and conditions, the amount being paid, the performance criteria, any failings in performance but not a word over the next 30 years will be heard," Dunion told technology law podcast OUT-LAW Radio in 2007. "I think that flies in the face of the purposes of freedom of information and my view is that the price of doing business with the public sector should be transparency."

Crawford said today that the Scottish Government would also be urging public sector bodies to push for accountability and openness in their dealings with the private sector.

"As a further measure to improve transparency across Scotland's public sector, I am today also launching a revised Code of Practice which provides guidance to public authorities in meeting their duties under Freedom of Information," he said. "This specifies the Scottish Government's clear expectations about disclosing contractual information and proactively publishing documents."

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