Shepherd and Wedderburn LLP
  June 13, 2006 - Scotland

Designation Under FOI
  by Kelly Harris

The Freedom of Information Act 2000 (FOIA) and the Freedom of Information (Scotland) Act 2002 (FOISA) both came into force on 1 January 2005. The Acts gave the general public the right to request and receive information held by public authorities for the first time. But what is a "public authority"? Looking primarily at the situation in Scotland, although the two Acts are broadly similar, section 3 of the FOISA defines a Scottish public authority as: one of the finite list of bodies set out in Schedule 1 of the FOISA which can be amended from time to time by the Scottish Ministers; a company wholly owned by the Scottish Ministers or any other Scottish public authority; a body which has been designated as a Scottish public authority by an order of the Scottish Ministers. The power to designate a body as a Scottish public authority is contained in section 5 of the FOISA. This power can only be used in relation to bodies that are not able to be added to the list of bodies in Schedule 1. This means they must not be a public body or the holder of public office. However, to be designated a body must exercise functions of a public nature or, by means of a contract with a public authority, provide services which are a function of that authority. So far, the Scottish Ministers have not exercised this power, nor has the Westminster Government exercised the similar power it has under the FOIA. But the Scottish Executive's recent consultation paper, "Freedom of Information (Scotland) Act 2002 - One Year On: a Consultation on the operation of the Act after one year in force", clearly indicates the Scottish Ministers intend to use their power in the future. The consultation set out proposals about how this power should be used. These included setting out draft criteria concerning, for example, the level of statutory governance of the activities undertaken by the body and whether these activities would be carried out by the government if the body did not undertake them. This consultation closed on 31 March 2006 and Ministerial decisions on its proposals are expected in the next month or so. It is also widely expected that Westminster will undertake a similar consultation exercise in the near future. It is therefore interesting to consider what type of bodies may be designated as Scottish public authorities once the power in section 5 is utilised. Prime contenders for designation under Section 5 would most likely be private companies that provide public sector services by means of PFI/PPP contracts with government bodies. Such companies would not be fully subject to the FOISA as coverage would be limited to that information which related to their activities under the PFI/PPP agreement. How this delineation between information which must be released under the FOISA and that which the company is entitled to keep to itself would work in practice is not yet entirely clear. Other bodies that could potentially be designated include public utility providers. At present some such bodies are already subject to the Environmental Information Regulations in England and Wales as they are recognised as bodies carrying out a public function. While freedom of information legislation has the commendable aim of creating a more open and accountable public sector, compliance could be potentially onerous for companies and other bodies. It will be important for them to be are aware of the extent of their obligations. Although both the Scottish and UK Acts impose an obligation on Ministers to consult prior to designation, there is no requirement that a person or body actually consent to being designated. This decision is for the Ministers to take, limited only by the criteria outlined above. Business will therefore await with interest the results of the Scottish consultation.


Footnotes:
Kelly Harris is a public law specialist with commercial law firm Shepherd and Wedderburn. +44(0)131 473 5382