Scottish Government outlines proposed extension to FOI laws

The Government plans to ensure that organisations and companies that carry out public functions make information available to the public in the same way that public authorities do.

Many activities previously carried out by public bodies are now conducted by companies under contract or by new organisations set up as trusts at arms-length from councils.

"Many local authorities have outsourced [leisure, sport and cultural services] to such trusts and bodies," said the Scottish Government's statement. "An unintended consequence is that the public lose their rights to access information about those services from the local authority itself. These organisations deliver services of major public benefit, and receive significant public money."

Two prisons are run by private companies, as are prisoner escort services, while the Association of Chief Police Officers in Scotland co-ordinates some policing policy. These should be covered by FOI laws, according to the Government's proposal.

It has launched a consultation on its decision, it said, because it did not want to burden private organisations with further regulation unless it was necessary.

"The Scottish Government is committed to the principles that underpin Freedom of Information legislation," said minister for parliamentary business Bruce Crawford. "These principles of openness and transparency are essential parts of open democratic government, nowhere more so than in following the expenditure of public money."

"Creating additional regulatory or financial requirements must be appropriate and proportionate, especially given the global economic downturn which has put some sectors of the economy under particular strain," he said. "A key part of the consultation will be our examination of any possible costs associated with any extension of coverage. The Government is committed to increasing sustainable economic growth and will only introduce legislation that is measured and proportionate."

The Scottish Government said that the FOI (Scotland) Act can be extended to "bodies which appear to the Scottish Ministers to be exercising functions of a public nature and to contractors who provide services that are a function of a public authority". The Act can be extended by an order of the Scottish Ministers.

Other bodies that the Scottish Government plans to include in the extension of the law are the Glasgow Housing Association and the builders and maintainers of public schools and roads, though it said that this might not involve a blanket inclusion.

"These are key areas of public service which are often delivered under private contract. These contractors form a large and diverse group and we will have to consider the appropriateness of coverage in detail, which may well be on a case by case basis

Crawford said last December that the Government had conducted an informal consultation that had indicated that there was support for the move.

The extension of the law in Scotland was first considered in the wake of a ruling by the Scottish Information Commissioner Kevin Dunion that a contract with a private company which built and operated an Edinburgh hospital should be published.

"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."

The consultation document sets out rules governing at what point organisations or companies should be covered by the extension of FOI laws. For companies that build or maintain schools it should apply to those whose contracts are for longer than 10 years and are worth more than £20 million, while cultural or sporting agencies should qualify if they receive more than £100,000 a year, it said.

William Malcolm, an information law expert with Pinsent Masons, the law firm behind OUT-LAW.COM, said that the bodies that have been asked to consult on the proposal should tell the Scottish Government what impact it will have on their business.

"Consultees will wish to consider the impact of these proposals on their organisations," he said. "Whilst all consultees will be committed to greater openness and transparency, organisations will no doubt be keen to ensure that they are not subject to an excessive additional compliance burden, especially given current financial pressures for the main sectors affected, construction and the public sector."