The move is intended to take account of the fact that public
bodies are increasingly using private companies and commercial
agreements to carry out functions that are essentially public. FOI
laws were passed in order to open publicly funded bodies up to
public scrutiny.
Parliamentary Business Minister Bruce Crawford said that he
would be travelling to Wales and England to discuss the move with
the Welsh and UK Governments before making a decision about a
formal consultation.
He identified three groups who would be targeted by a change in
the law: registered social landlords; contractors who provide
public services that are a function of a public authority; and
local authority trusts or bodies set up by local authorities.
A number of contractors are now involved in work that would
previously have been done by local authorities through construction
and maintenance deals that are jointly financed by the public purse
and private companies.
The third category would include agencies set up to run public
facilities. Both Edinburgh and Glasgow have created independent
organisations to operate council leisure facilities.
"Discussions will take place before any decision is taken to
formally consult. But formal consultation is not a rubber-stamping
exercise. Any extension of coverage needs to be measured and
appropriate," said Crawford.
"For example, we will look closely at the issue of the
proportional impact on smaller organisations particularly in the
voluntary sector. I am aware there are differing arguments and
there is a need to balance those," he said.
But William Malcolm, an expert in FOI at Pinsent Masons, the law
firm behind OUT-LAW.COM, said that the Act already contains
provision for Scottish Ministers to add bodies or companies to the
Act without actually changing the law.
Others, such as leisure trusts or companies wholly owned by
local authorities, are already covered by the Act and need no
change at all to be made to FOI arrangements, he said.
"You don't need to amend the Act to do this, so this would be a
consultation on existing powers under the Act," said Malcolm.
If joint ventures between public and private bodies were to be
included they would need to be added to a schedule attached to the
law, but this would not require a change to the law itself.
Under the Act they would need to "appear to the Scottish
Ministers to exercise functions of a public nature; or [be]
providing, under a contract made with a Scottish public authority,
any service whose provision is a function of that authority".
Malcolm said that in these cases the Scottish Government would
need to ensure they did not interfere with the parts of the
organisations dealing only with private business.
"Scottish Ministers would need to be careful to ensure that they
only applied this to those parts of the organisation delivering
public services and functions," he said. "It might be difficult for
companies to separate the operations dedicated to public clients
and those for private clients."
The issue of access to information about private companies
conducting public functions came to a head in Scotland last year
over the £1.2 billion Edinburgh Royal Infirmary (ERI), built and
operated under a Private Finance Initiative (PFI) scheme.
The Scottish Information Commissioner ordered that the contract
for the building of the hospital be made public under an FOI
request despite its involving private companies. NHS Lothian and
the companies involved opposed the publication.
Scottish Commissioner Kevin Dunion told OUT-LAW Radio at the
time that he believed the public has a right to probe private
contracts.
"The FOI Act should follow the money and if the money is being
spent on public functions whether it is directly from the public
authority or a private contractor then information about that
should be made available to people," he said.
Dunion ordered NHS Lothian to publish the contract involving PFI
operator Consort for the building and 30-year operation of the
ERI.
