Issues arising from consultation on extending the Freedom of Information (Scotland) Act to Registered Social Landlords
The premise of the consultation earlier this year was that RSLs should be designated as public authorities for the purposes of the Act in order to provide the same information rights to tenants of RSLs (and anyone else requesting information) mirroring those rights already available to anyone wishing to request information from a local authority landlord.
The Interim Report highlighted various issues discussed below.
Comments on the administrative impact of designation are incorporated in the Business and Regulatory Impact Assessment that forms Annex A to this report.
In tandem with this report we are also publishing an Equalities Impact Assessment and Child Rights and Wellbeing Impact Assessment.
'Function' is central for designation - the Act can only be extended to organisations insofar as those bodies undertake functions of a 'public nature'.
As noted in the Interim Report, a number of responses, particularly from tenant organisations, considered that simply providing 'social housing' - the core function of RSLs - was justification in itself for designation.
In respect of designating 'functions of a public nature', we note the view of the Scottish Federation of Housing Associations that an order should focus on housing services of a public nature only, along with Glasgow and West of Scotland Forum of Housing Associations noting that the majority of their members agreed that many of the mainstream services provided by housing associations were of a public nature.
We also note the comparison drawn by the Association of Local Authority Chief Housing Officers that RSL tenants signed the same form as those renting from local authorities and in all other respects have the same rights as Council tenants.
However, not all functions undertaken by RSLs will necessarily be in the context of 'housing services' or, more broadly, be public in nature (assessed against the range of factors set out in the earlier consultation paper).
In terms of discussion around 'function' and consideration of issues raised during consultation we note the identification - and distinction - between care functions as opposed to housing functions.
Responses have highlighted this distinction and expressed concern about the impact - commercial and otherwise - on those RSLs who are also involved in the provision of care services - as distinct from housing services. In particular, noting that the provision of care is subject to separate legislation, funding arrangements and regulatory regimes (for example, in being overseen by the Care Inspectorate).
As commented on in the Interim Report, consultation on designating RSLs for the purposes of the Act explicitly did not propose to include RSL subsidiaries within scope of any eventual order. This was on the basis that subsidiaries were primarily set up as commercial organisations to undertake what would be regarded as 'private activities' not directly related to the core housing functions of the parent RSL. Indeed from available data, a significant number of the subsidiaries operated by RSLs define their activities as 'commercial' or 'business'.
While few responses made specific comment on RSL subsidiaries, we note the Scottish Information Commissioner's concerns about excluding subsidiaries from the scope of an order - and that the rationale for excluding subsidiaries from designation was not robust.
As the Commissioner suggests, in the event of RSLs (or their subsidiaries) becoming designated for the purposes of the Act, as with any public authority already subject to the legislation, exemptions could be applied to information potentially of a commercial nature - or indeed of other potential sensitivity such as personal data (whether in terms of housing, care or any other function undertaken).
In not considering subsidiaries for designation we note the potential for inconsistency in that access to information rights would potentially be determined by whether a housing service was provided directly by the parent RSL or their subsidiary.
We also note that, in the event of the designation of RSLs, if deemed to be 'under the control of' an RSL, subsidiaries could be considered subject to the Environmental Information (Scotland) Regulations 2004 insofar as they hold environmental information.
Housing (Amendment) (Scotland) Bill
Subsequent to consultation on the designation of RSLs, in September 2017 the Scottish Government introduced the Housing (Amendment) (Scotland) Bill into the Scottish Parliament. The purpose of the Bill is to pave the way for the Office for National Statistics to reclassify RSLs to the private sector by reducing the control and influence that the Scottish Housing Regulator and local authorities are able to exercise over RSLs.
Given the Bill's purpose and given that the Scottish Information Commissioner has determined that RSLs are subject to the Environmental Information (Scotland) Regulations 2014 on the basis of being 'under the control of' the Regulator, we note that one of the potential consequences of the proposed legislation could be to remove RSLs from the scope of the Environmental Information (Scotland) Regulations 2004.