Parliament warned that action is needed to protect FOI

News Release: 19 January 2015


Scottish Information Commissioner Rosemary Agnew has warned the Scottish Parliament that immediate steps must be taken to protect freedom of information (FOI) rights from the damage caused by the outsourcing of important public services. The Commissioner made the warning in a Special Report to Parliament, laid on Friday (16 January). The Report explains that the provision to extend FOI to non-public sector organisations delivering public functions has been "woefully underused" in the ten years since FOI law came into effect, with the consequence that some public functions are no longer open to full public scrutiny.

The Commissioner's report reflects growing concern about the impact of changes in public sector delivery on information rights. For example, since 2005, over 15,000 Scottish households have lost FOI rights following the transfer of local authority housing stock to housing associations, and the Scottish Parliament's Public Petitions Committee is currently considering a call for FOI rights to apply to all housing associations. While the Scottish Government has the power to extend FOI to third parties that provide public services, this power has only been used once in the last decade. This was in 2013 for the designation of local authority leisure and culture trusts.

Commissioner Rosemary Agnew said:

"The first decade of FOI in Scotland is a real success story. Over 60,000 requests were made last year alone, and recent research revealed that 95% of the public believe that the right of access to the information held by public bodies is important.

"Worryingly though, our right to information is being slowly eroded. Rights have been gradually lost over the last 10 years as the responsibility for public service delivery is passed to third parties. These rights are fundamental to ensuring public services are open, cost-effective and accountable to the public.

"As the models for the delivery of public functions evolve and change, it is vitally important that the public's right to the information held about the services that deliver them are protected and strengthened".

The Commissioner's Special Report, FOI 10 Years On: are the right organisations covered? contains a number of recommendations for action by Scottish Government Ministers to address her concerns. The recommendations include:

  • adopting a policy to ensure FOI rights are migrated whenever a body delivering public functions or services changes
  • carrying out a review to identify where FOI rights have been lost over the past decade, and reinstate them
  • taking steps to ensure that FOI rights apply to those bodies responsible for social housing and private prisons and
  • adopting a factor based approach to wider FOI designation, to ensure that FOI rights apply to bodies which are considered to be delivering functions of a public nature.

The Commissioner's Special Report is available on her website at: The Commissioner would also welcome anyone with a view on this issue getting in touch with her at


For further information contact the Commissioner's Media Team on 01334 464610, out of hours on 07976 511752, or email

Notes to Editors:

About the Commissioner's Special Report

1. The Commissioner's Special Report, considering whether the right bodies are covered by FOI was laid before the Scottish Parliament on 16 January 2015.

2. This is the second Special Report published by Commissioner Rosemary Agnew, following her report on public authority failures to respond, laid before the Scottish Parliament in August 2014.

3. The report reflects on the success of FOI, but also highlights the Commissioner's concerns around the lack of consistent progress on the extension of FOI. The Commissioner identifies two aspects to this: the lack of extension to new bodies which have never been subject to FOI and the erosion of FOI rights as a result of the failure to ensure that FOI keeps pace with changes in how public functions are delivered.

4. Section 5 of the Freedom of Information (Scotland) Act 2002 contains provision for bodies that carry out "functions of a public nature" to be designated under FOI. To date this provision has been used only once in ten years.

5. In addition to the recommendations set out above, the Report also sets out two broad types of approach that the Commissioner considers the Scottish Ministers could adopt to support a thoughtful and considered approach to designation:

  • A rights based approach whereby the right to information follows existing FOI rights if the way public functions are delivered changes, for example through outsourcing or creation of an arm's length external organisation.
  • A factor based approach when considering whether additional functions are "public functions" and so appropriate for FOI designation. This would enable a range of issues to be considered so a balanced decision about designation at a particular point in time could be taken. The report proposes a list of factors to support Ministers' deliberations.

6. The report is available at

About the Research

1. The research was conducted on behalf of the Commissioner by Ipsos MORI in October 2014. The results were based on a survey of 1,001 adult respondents, conducted by telephone.

2. Findings of the research include:

  • 84% of respondents reported to have heard of the FOI Act, the highest recorded level, up from 78% in 2013 (and 69% in March 2005). 73% said that they had "definitely" heard of the Act, up from 60% in 2013 (and 49% in March 2005).
  • 95% of respondents agreed that it was important for the public to be able to access the information held by public authorities, and 75% strongly agreed.
  • 94% agreed that FOI is important in holding public bodies to account for their spending decisions, and 73% strongly agreed.
  • Only 8% believed that FOI is a waste of public, while 86% disagreed, with 61% strongly disagreeing.

The full research report and accompanying datasets is published online at:


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