Scottish Government to consult on extension of FOI to private and third sector providers of care homes

The Scottish Government will commit to a future consultation on the extension of the Freedom of Information (Scotland) Act (FOISA) to private and third sector providers of care homes and care-at-home services.  

Speaking at Holyrood’s Freedom of Information 2023 event in Edinburgh, Minister for Parliamentary Business George Adam confirmed it will take place after the National Care Service Bill has been passed and will commit to revise the section 60 Code of Practice. The process will be done in consultation with the information commissioner, David Hamilton, to provide updated guidance for Scottish public authorities.

Adam acknowledged the “acute pressures” on parts of the social care sector and said that any extension of FOISA will “take into account the needs” of the sector, “particularly smaller organisations”.

The new guidance for public authorities will pertain to the handling of requests about services delivered by outsourcing partners, the use of non-corporate platforms such as WhatsApp and Telegram, as well as other developments in IT, and make the relationship between FOISA and the Environmental Information (Scotland) Regulations (EIRs) clearer for requesters.

Adam’s announcement comes in response to a consultation on access to information rights in Scotland, which was announced last year.

He added that the government will develop and set out a clearer, more “structured and consistent” approach to the future use of section 5 power under FOISA – which sets out that requested information must be provided unless it is subject to one or more exemptions.

In response to a question by the audience, Adam said he is keen to look at anything that is non-legislative to improve “the work that we do in this sector”.

This approach has been criticised by the Scottish Liberal Democrats, who say the Scottish Government under the SNP is “wedded to secrecy” by not introducing any primary legislation to update information rights before the end of the current parliament in 2026. 

They argue the response to the consultation refuses to legislate on the use of WhatsApp, instead preferring guidance, as well as refusing to grant parliament more powers to determine who is subject to FOI, and does not match Irish FOI legislation that clamps down on confidentiality clauses between public bodies and their contractors.   

Scottish Labour’s Katy Clark also criticised the proposals, calling them “weak, timid and far from what the public is calling for”.  

Clark will lodge her final proposal to seek the right to introduce a Free of Information Reform Bill, which will extend FOI coverage to all private and third sector providers of public services next week.  

Her Members’ Bill will also include a restriction on the use of confidentially clauses, introduce a statutory duty to proactively publish information, and remove the first minister’s ability to veto power to comply with certain notices.  

Adam said: “Scotland already has rigorous FOI legislation to ensure accountability around decision making processes. It provides robust rights for requesters to be provided with information held by public authorities, balanced against the need for proportionality and the protection of sensitive information.  

“Areas for improvement were highlighted in the consultation responses and we will consider how existing provisions can be used to ensure FOI rules are up to date and working effectively. That will include looking at how FOI applies to services delivered in partnership with third sector and private sector providers.  

“Social care is a vital public service and the National Care Service Bill explicitly seeks to increase the accountability of Ministers for its delivery. The extension of FOI rules to the sector would be consistent with this proposal. However, we recognise the acute pressures in parts of the sector, which is why we will fully consult all partners after the bill has been passed before any changes are made.”  

After appearing at Holyrood’s Freedom of Information 2023 event, Clark said: “It’s now been three years since the Public Audit Committee argued in its post-legislative scrutiny of FOI legislation that non-public sector bodies delivering public services should be subject to FOI. The principle is clear: public information should follow the public pound. 
 
“Now, the Scottish Government has finally made clear its intentions: kick the can down the road yet again. 
 
“There’s no commitment to private or third sector designation, just a vague commitment to a consultation on the care sector and only after the passage of a National Care Service that has itself been delayed. This is weak, timid and far from what the public are calling for. It’s utterly undemocratic that so many publicly-funded organisations evade scrutiny because of their ownership. 
 
“I’ve repeatedly called on the Scottish Government to back my proposed reforms and work with me on this issue. Today’s announcement is disappointing yet unsurprising from a government which has essentially been under special measures over its own atrocious FOI performance for the past five years. 
 
“My bill will finally close these loopholes, introduce a statutory duty for bodies to proactively publish information, and make FOI fit for the modern day.” 

The Lib Dem MSP Willie Rennie said: “This SNP Government is wedded to secrecy.  

“Meaningful reform is being stopped dead in its tracks because ministers don’t want to close the loopholes they have been using to dodge scrutiny. Nobody will be fooled by the promise of further reviews and consultations designed to kick transparency into the long grass.  

“Freedom of information legislation was groundbreaking when Scottish Liberal Democrats first introduced it twenty years ago. What was supposed to be the beginning has been steadily unpicked by a shameless SNP Government.  

“It is essential to inject transparency back into government. This really matters because we’ve seen Covid WhatsApps deleted, the needs of islanders relegated below confidentiality in the ferries fiasco and the government’s collapsed deposit return company exempt from FOI.  

“To fix our broken politics we would expand FOI, introduce a new duty to record to end the culture of unminuted meetings, and ensure Scotland keeps pace with international best practice by joining the Tromso Convention.”