The right to know: An RSL's relationship with Freedom of Information

FOI – duties to disclose, publish and advise

Since 1 January 2005, when both the UK Freedom of Information Act 2000 (FOIA) and the Freedom of Information (Scotland) Act 2002 (FOISA) came into force, anyone, anywhere in the world, has had a right to request and obtain a copy of recorded information held by or on behalf of UK public authorities or Scottish public authorities. Both Acts also require public authorities to produce publication schemes identifying information they publish proactively and to provide reasonable advice and assistance to those seeking to make FOI requests.

FOISA v FOIA

Although the UK’s FOIA was passed two years before FOISA, they both became law on the same day. However, there are some key differences between the two Acts, with FOISA having moved ahead of FOIA in providing a more open regime for accessing official information. One example is that, under FOISA, the right to information is subject to various exemptions to disclosure, many of which involve the application of a harm test at a level of substantial prejudice, plus a public interest test, before an exemption can be claimed. FOIA, on the other hand, contains a weaker approach to its exemptions, opting for just prejudice as its main harm test. This means that information can be withheld under the UK Act that would need to be disclosed under the Scottish Act.

FOISA has certainly made a difference to open government in Scotland, with increased recognition of the wider importance of freedom of information in achieving greater transparency and accountability in decision-making, the provision of public services and the use of public funds, with an FOI disclosure having the effect of placing information in the public domain. FOISA is generally regarded as fundamentally sound, robust and internationally well-regarded, although there have been recent calls for it to be amended, from within the Scottish Parliament and wider society.

Designation of RLSs in Scotland

The Scottish Government has already used its regulation-making powers to add new public authorities to the list of those covered by FOISA, as well as designating other bodies as being covered by FOISA in respect of certain public functions. Notably, the Scottish Ministers used an Order in November 2019 to extend FOISA to cover Registered Social Landlords (RSLs) and their subsidiaries in relation to housing services, including the provision and management of housing accommodation, the prevention and alleviation of homelessness, the provision of services for owners/occupiers and the provision and management of sites for members of gypsy/traveller communities.

The Scottish Information Commissioner, who is responsible for promoting and enforcing freedom of information, published the results of a survey on how RSLs in Scotland were dealing with their new duties under FOISA, in his report Registered Social Landlords: One Year On (March 2021). He concluded that RSLs were “responding well” to FOISA, were confident that they were able to deal with FOI requests effectively (97% of respondents) and were also publishing more information pro-actively (81% of respondents) as a consequence of being designated under FOISA. RSLs reported that 84% of requests for information had resulted in some or all of the requested information being disclosed and also that they had not been overwhelmed by FOI, with a majority reporting that FOI had had a small impact on staff workload and only 8% needed to employ new staff to assist.

Social Housing (Regulation) Act 2023

In contrast, RSLs across the rest of the UK have not been designated as UK public authorities for the purposes of FOIA. There have been some developments, however, focused on the provision of a scheme for tenants to access certain information about housing services from RSLs and certain others. The new Social Housing (Regulation) Act 2023 provides for the establishment of an Access to Information scheme for tenants, and for registered providers to be required to give their tenants information on their rights and how to make complaints, as well as a requirement to publish information on management costs and executive remuneration. However, as noted by a number of commentators, this development creates significantly narrower rights than those that would be conferred if RSLs were brought within UK FOIA.

rUK RSLs and access to information

At the beginning of 2022, the UK Information Commissioner, as the FOI regulator, called for UK RSLs to be brought within FOIA, noting that, from the perspective of equality of rights: “The ICO believes that housing associations that provide social housing should be covered by the Freedom of Information Act 2000 in the same way as housing provided by local authorities. We believe access to information laws should remain relevant and appropriate to how public services are delivered”. The UK Government rejected an amendment proposed to the Social Housing (Regulation) Bill to do just that. However, given that the amendment was brought forward by Labour’s Shadow Housing Minister, it seems quite likely that any future Labour Government would support the inclusion of RLSs within FOIA, but it remains to be seen of course what will happen after the next UK General Election.

Next steps

In terms of what will happen next in Scotland, there are further proposals on the table from the Scottish Government for some reforms to FOISA, with competing proposals under development in the form of a proposed Member’s Bill from Katy Clark (Labour), following a report by the Public Audit and Post Legislative Scrutiny Committee of the Scottish Parliament recommending changes in a number of areas of FOISA.

However, there are bigger changes on the horizon for RSLs in Scotland, stemming from the rights-based approach favoured by the Scottish Government, in the form of a proposed Scottish Human Rights Bill. This Bill, expected to be published by summer 2024 will, amongst other things, incorporate a right to adequate housing in Scots law as part of the incorporation of the International Covenant on Economic, Social and Cultural Rights. It is understood that the Bill will include RSLs, alongside local authorities, in the list of ‘duty bearers’ who will be subject to this legislation.

Alongside existing rights of access to information held by Scottish RSLs, it would appear that the Scottish Government’s intention is to ensure that there is no discrepancy in rights available to tenants, or indeed others, when it comes to social housing services, regardless of whether they are provided by local authorities, RSLs or indeed others. Although such an approach is not favoured by the UK Government, it seems that there has been a slight move in the direction of trying to address discrepancies in information rights for tenants at UK level, through the Social Housing (Regulation) Act 2023. The changes made by the 2023 Act are unlikely to be the last word on the subject however, so perhaps rUK RSLs should at least consider what more they could publish and how they intend to deal with new requirements that are coming their way.