Section 5 of the Freedom of Information (Scotland) Act gives the Scottish Ministers the power to designate such persons or bodies that appear to the Scottish Ministers to exercise functions of a public nature or are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority as public authorities for the purposes of the Freedom of Information (Scotland) Act 2002.
The power under section 5 has never before been used by any member of the Scottish Administration since the Act came into force on 1 January 2005. Schedule 1 to the Freedom of Information (Scotland) Act 2002, which sets out those persons and bodies covered by the Act, has been amended by other statutory provisions as new public bodies have been created and as existing public bodies are abolished.
The new order, if approved, will make arm’s length bodies established by local authorities to provide cultural, sports and leisure services public authorities under the Freedom of Information (Scotland) Act 2002. Since the Act was passed in 2002 there has bene a significant shift in the way that public services have been provided. Local authorities have established companies to carry out a whole variety of functions. These companies are not covered by the Freedom of Information (Scotland) Act 2002 and their establishment has represented a loss of information access rights.
This move is to be welcomed and it is an important step forward in ensuring that those who are responsible for spending public money and delivering public services are accountable directly to the people of Scotland for how they spend that money and provide those services. However, it does little more than recover information access rights that have been lost and rectify a government failure in not designating these bodies earlier. There remain bodies who carry out important public functions which, it is argued, should be covered by the Freedom of Information (Scotland) Act 2002. If the Scottish Government is serious about FOI and extending its coverage, then it ought to go further and consult on other bodies (such as COSLA, the Law Society of Scotland and the Faculty of Advocates).