Registered Social Landlords and their subsidiaries

In April 2019 the Scottish Parliament approved an Order under section 5 of the FOI Act, designating Registered Social Landlords (RSLs) and their subsidiaries as subject to FOI from Monday 11 November 2019.

Who's covered by the Order?

The Order contains a two-part test:

  • Does an organisation fall within the Description of persons contained in the Order?
  • Does it have any of the Functions described in the Order?

Test 1: Description of persons

The Order applies to Registered Social Landlords and connected bodies (see the Schedule to the Order).

Registered Social Landlords

A body is an RSL if it is listed in the Scottish Housing Regulator's Register.

Connected bodies/subsidiaries

An organisation is a "connected body", and is subject to the Order, if it is a subsidiary of an RSL.

We have further guidance on when subsidiaries may fall within the scope of the Order.

Test 2: Functions

An RSL or subsidiary is only subject to the Order to the extent that it carries out one or more of the following functions (see the Schedule to the Order):

  • the prevention and alleviation of homelessness
  • the management of social housing accommodation (i.e. where an RSL has granted a Scottish secure tenancy or short Scottish secure tenancy)
  • the provision and management of sites for gypsies and travellers
  • supplying information to the Scottish Housing Regulator in relation to its financial well-being and standards of governance

It's important to note that FOI rights only apply to information held by an organisation relating to the functions covered by the Order.

What this means in practice

RSLs and subsidiaries must first satisfy themselves whether or not they fall within the scope of the Order. Any organisation which is unsure should seek their own advice.

The Commissioner cannot advise individual organisations on their own structure or functions, and will only be able to consider individual cases in detail if an appeal is made under FOI or the EIRs, or a compliance issue is investigated.

As FOI rights only apply to information held by an organisation in relation to the functions covered by the Order, when an information request is received, organisations will have to consider the requested information to decide if FOI rights apply.

If FOI rights do apply to the information, the authority must respond in line with the duty to respond to requests.

If an authority considers that FOI rights don't apply to the information, it is good practice to:

  • explain to the requester that not all of the information it holds is subject to the FOI Act or the EIRs
  • set out the reasons why (for example, the information might relate to the provision of services for owners and occupiers of houses or the management of non-social housing accommodation, meaning that it is not covered by the Order)
  • consider the duty to advise and assist (for example, is there information which is covered by the Order which might help the requester?)

It's also good practice to notify the requester of their right of review and right to appeal against the decision.

Best practice tips

  • Search thoroughly - make sure you search thoroughly for all information covered by the request, so your final decision is based on the actual information held
  • Consider whether information can be disclosed anyway - regardless of whether there is a right to the information, consider whether it can just be disclosed. Disclosing information is generally easier than withholding it. It's also an opportunity to demonstrate a commitment to openness by telling requesters that they can have the information, even though it's not covered by FOI law
  • Consider the requested information carefully - examine the requested information carefully before drawing conclusions. Are you sure all of the information falls out of the scope of FOI?
  • Be prepared for combined responses - a broadly-framed request might ask for some information that is covered by FOI law, and some which is not. Be prepared to respond, e.g. by disclosing information covered by the Order and explaining why other information isn't covered by the Order
  • Use clear language - FOI is a legal process, but do what you can to help people understand that process. Explain your decisions clearly, thinking about the needs of individuals
  • Treat FOI as part of customer service - take a customer-focused approach to your FOI duties. Always remember your duty to advise and assist
  • Plan for FOI - think about the information you hold that will fall outside the scope of FOI. Is it possible to identify this information when it's created, to reduce time when considering requests?

See also

 The duty to publish information

 The duty to respond to requests

 The duty to advise and assist

 Managing FOI

 Resources for RSLs

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