by Duncan Biggar, Trainee Solicitor
The Freedom of Information Act (Scotland) 2002 (“the Act”) enables individuals to request information about public bodies, but biennial reviews of the legislation might soon mean some charities need to comply with the regime.
Section 5 of the Act allows the Scottish Government to designate any organisation as a public authority for the purposes of the Act, and thus force it to comply with the legislation. This is incredibly broad, and extends from charities right through to private companies.
The Act requires the Scottish Government to undertake a review of the section 5 powers every two years, and the next report is due to be laid before the Scottish Parliament in 2021. Despite this, the reviews are an ongoing process of reform with consultations, reports and reviews filling much of the two-year interval.
The direction of travel towards the third sector has been made clear by a recent consultation paper, which focussed particularly on organisations that ‘deliver services on behalf of the public sector’. Many of these organisations will be charities.
The Government can only designate an organisation if it meets several tests. Firstly, the organisation must be performing services under a contract with an existing public body. Secondly, the service provided must be one which the authority has the function of providing.
For example, a healthcare or wellbeing charity that is contracted to provide services that the state has the responsibility to provide could be designated. Many organisations will be ruled out by the ‘function test’, but the nature of the services provided by many charities make their future designation possible.
One of the most high profile section 5 orders was to bring private prison contractors within the scope of the Act. In order to do so, the Scottish Government had to define the organisations affected, and to state what service they are providing. As prison services are a function of the Government which was contracted to a private company, this met the tests. Any future section 5 orders must follow the same processes.
Crucially, prison contractors were designated by way of a description rather than specific identification. This brought a whole class of organisations into the scope of the Act in one legislative move. Charities meeting the tests should be aware that a broad descriptive designation could inadvertently make them subject to the legislation.
The results of the most recent consultation are due to be published before the end of March, but it is likely to be sometime before any implementing legislation, if any, is brought forward. Without significant reform, the tests will remain the same, but it is clear that the move towards ever greater transparency will continue to impact the Charities sector.