Common questions - subsidiaries of RSLs


Is my subsidiary covered by the Designation Order?

The Commissioner is not able to provide a definitive list of the subsidiaries covered by the Scottish Ministers' designation order. This is because the terms of the Order mean that individual coverage will depend on a number of factors, including the corporate structure of a subsidiary and its parent RSL, the relationship that exists between them, and the functions and activities of the subsidiary.

While we anticipate that many RSL subsidiaries will fall within the scope of the definition, it will be up to individual subsidiaries to satisfy themselves as to coverage. The Commissioner will only be able to consider individual circumstances in detail when investigating specific appeals.

We have, however, published information to assist organisations in making this assessment.

If a subsidiary is dormant, does the Designation Order apply?

Whether an organisation is covered by the Order is dependent on a two-part test:

  1. Whether the organisation is a subsidiary of an RSL
  2. If so, whether it performs (or has performed) any functions covered by the terms of the Order

If an organisation meets the two-part test, it will be covered by FOI law, regardless of whether the organisation is dormant or active.

All organisations that are covered by FOI law must meet the full range of duties required by the legislation.

Subsidiaries that are covered by the Designation Order

What should we do if we receive a request for information which does not relate to the functions covered by FOI or to the EIRs?

If a request is received for information which does not relate to the functions covered by FOI or to the EIRs there will be no statutory duty to respond to that request under FOI law. FOI rights will not apply to that information.

However, a requester who considers that the information does fall within such a function can appeal to the Commissioner. The Commissioner would then, as part of that process, determine whether or not the information sought falls within the functions.

If a subsidiary considers that FOI rights don't apply to the requested 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)
  • 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.

When meeting the duty to publish, should subsidiaries publish all the information held which falls under the classes of information or just that which relates to designated functions?

The legal requirement is for subsidiaries to publish information only where it relates to the functions specified in the designation Order. A subsidiary which publishes information on the functions in the Order - having taken due regard to the public interest considerations set out in section 23(3) of the FOI Act - will meet the publication duty under the Act.

Subsidiaries might want to publish information over and above the statutory requirement. For example, a subsidiary may want to publish additional information where a minute or report contains information relating to both designated and non-designated functions, and the subsidiary has no concerns around the publication of the "non-designated" information. In such cases it would, of course, be free to do so.

However, to avoid confusion for service users and staff, it will be good practice for information which relates solely to "non-designated" functions to be clearly labelled. Our recommendation is either:

  • for this information to be listed in the Guide to Information under each class within a subsection titled "Additional information", with text making clear that the additional information is published over and above the publication scheme requirement; or
  • for the additional information not to be separately listed or described in the RSLs Guide to Information.

There's more information on meeting the FOI duty to publish.

Subsidiaries that are not covered by the Designation Order

What should we do if we receive a request for information?

If an RSL subsidiary is not covered by the designation Order (because it does not fall within the definition of a "connected body" under the Order, or because it performs none of the activities or functions covered by the Order) then there may be no statutory duty to respond to requests under FOI law.

Where this is the case, the subsidiary may, of course, still choose to respond to the requests for information it receives. Any response would not be made under FOI law, and the requester would have no legal right of appeal if they were unhappy with the outcome of the request (subject to the proviso below).

However, if a requester disagrees with the subsidiary's analysis of its status they can appeal to the Commissioner, who can then, as part of that process, determine whether subsidiary is covered by the Order.

Subsidiaries should also be mindful of the EIRs. If a requester is seeking environmental information, legal rights may exist where the subsidiary is under the control of a body covered by the FOI Act (such as the parent RSL) and the subsidiary provides public services, exercises public functions or has public responsibilities relating to the environment.

For further information on whether a subsidiary is covered by the EIRs click here.

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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