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Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2013 [Draft]
Item 3 is consideration of a Scottish statutory instrument that is subject to affirmative procedure and which seeks to extend the provisions of the Freedom of Information (Scotland) Act 2002 to include arm’s-length external organisations—also known as ALEOs—that local authorities have established to deliver leisure and culture services. Members have a copy of the SSI, along with a cover note from the clerk.
We have no opening statement.
I have no opening statement.
The SCVO supports the draft order, which will extend the 2002 act to cover leisure and culture trusts. We also support the extension of FOI legislation to other arm’s-length bodies and we hope that further action will be taken in the coming year to cover those bodies. We support the principles of FOI and the public’s right to know.
I will start the questioning by asking Mr Vango and Mr Given about the current situation with Inverclyde Leisure. Your submission says that responding to some FOI requests would be costly. What do you respond to at the moment? I imagine that you get a number of questions from the public about your services.
We have a customer comments procedure, which deals mainly with operational issues. The situation would depend on what the freedom of information request concerned. In our submission, I gave an example of a request about pool-water tests, which could take a lot of time and resource for us to answer.
Your submission mentions that, in a previous life with Glasgow City Council, Mr Given knew of a person who kept making FOI requests because he was not getting a meeting to discuss a matter. What should be done about such vexatious situations?
In that situation, what was said was more of a threat than something that was carried out. The council that I worked for had no choice but to meet the customer, because of the FOI threat that the customer made.
We had one such case recently. I am new in my position—I have been in position for only three months. Restructuring took place just before I took charge; one member of staff who had been affected by the restructuring threatened to keep putting in freedom of information requests to disrupt the organisation. Obviously, if our focus was on that, it would not be on our charitable aims.
In the circumstances, would not it have been easier just to meet the man to discuss whatever issue he had?
It was not a matter for me, but I agree that that would probably have been the best idea.
If a policy was in place to meet people who have complaints, there would not be the possible threat of vexatious FOI requests.
At Inverclyde Leisure, we do meet people.
Good. I am glad to hear that. Are there any other comments? The SCVO has submitted the very clear view that the powers should be extended. Do you want to add to that?
I will just reiterate what we have said. ALEOs are a special case and are exactly what section 5 of the Freedom of Information (Scotland) Act 2002 was designed for. They are governed by and receive money from local authorities, and they deliver public services. It is clear that they exercise functions that are of a public nature.
Good morning, everyone. Inverclyde Leisure’s submission contains some misgivings about confidentiality. I understand that, from 2014, the FOI regime will apply to all culture, sport and leisure ALEOs, which means that existing contracts will be covered. Do you see that as a problem?
If the regime comes in, we will make sure that we have the systems and procedures to ensure that we comply.
Will that apply just to new contracts or will it also apply retrospectively?
The regime will apply retrospectively. We will have to organise to ensure that our filing systems are up to date. What do you say, Craig? You have been in position for longer.
We will do what we are required to do. Because of how we are structured at the moment, we will need to work out how we can do what we are required to do, but we will be able to do it.
Okay. The decision to extend the FOI regime to ALEOs seems to be rather limited, in that it will not apply to all ALEOs. I know that the SCVO has a view on that. Does Inverclyde Leisure have a view on why the regime is not being extended more widely? It seems to cover only culture, sport and leisure.
We are a charitable leisure trust that offers cultural activities for the community and we have a funding agreement with our local authority, but plenty of other people and voluntary organisations are funded by the public purse, so I see no reason why the regime should not be extended to all of them.
You are talking about voluntary organisations.
I am talking about voluntary organisations as well. The principle is the same, whether or not the work is voluntary. We offer a service to the community and we have volunteers within our organisation. We are a charitable leisure trust; I think that our situation is the same.
Is a key distinction the fact that you have that link to your local authority?
We have a link, through the funding agreement, with the local authority, but that does not mean that we could not operate, within our memorandums and articles, throughout Scotland, as long as the board approved that. For example, I could run leagues in Aberdeen, or wherever, that would not be part of the local authority funding agreement. I would like to do that—I would like to expand our leisure and cultural activities to the whole of Scotland.
Nonetheless, there is a distinction between the third sector—the voluntary sector—and ALEOs in terms of how you are set up and your links with local authorities. Do you accept that?
Yes—there is a distinction in terms of how we are set up currently.
Would Felix Spittal like to elaborate on that?
Yes. That is certainly our position. The voluntary sector is the third sector—whichever term you prefer—and it is diverse. There are a lot of different legal structures and governance models, but there are some key principles that divide the sector from the public sector and it is important for us to protect those principles. One key principle is that the third sector is independent from local and central Government—and is seen to be so by the public—so we would not consider ALEOs such as Inverclyde Leisure to be part of the third sector.
In your submission, you suggest that the powers should be extended beyond what is proposed.
Yes. As regards the care services that are now being provided by ALEOs and that are starting to spring up—I think that Audit Scotland says that there are now 130 ALEOs, of which leisure trusts are just a few—there is, in principle, no good reason why FOI should not be extended to all arm’s-length bodies.
Finally, you had some reservations about the definition of ALEOs in the order as being
I do not have a better definition than that: it was mentioned to bring the point to the committee’s attention. My concern when I read through the order was that perhaps organisations could work with another organisation when establishing a new body. Riverside Inverclyde works with Scottish Enterprise and others, so it could perhaps get around FOI because of that. I am not sure that it could; it was just something for the committee to consider.
This question is a bit technical and will, largely, end up in the minister’s in-tray, rather than in yours. The amendment is being made under section 5 of the Freedom of Information (Scotland) Act 2002 rather than under section 4, which would have added ALEOs to the schedule of public authorities. It seems to me that you are not being added to that schedule because you are not part of the Scottish Administration or of a Scottish public authority with mixed functions or no reserved functions. Is that your understanding?
Yes.
One effect of that, of course, is that you are not part of schedule 1 and so section 44 of the Climate Change (Scotland) Act 2009, which refers directly to the schedule 1 list and places duties on public bodies related to climate change, would not apply to you. Do you nonetheless feel that you would voluntarily wish to sign up to those duties, given the kind of activities that you undertake and given that bodies that remain part of the public sector and are undertaking identical functions would be covered by section 44 of the 2009 act in relation to climate change duties?
I can speak only for Inverclyde Leisure. We have been in favour of signing up. My previous company had ISO 14001 certification, which we will seek to adopt in Inverclyde Leisure as well, so I think that the answer is yes.
That is helpful. Thank you.
Does anyone else wish to comment on that highly technical question? Mr Vango managed it.
VOCAL feels that the ALEOs should be included in FOISA because the vast majority of them—if not all—came from local authority service provision and therefore were previously covered by FOISA. With the move to the creation of ALEOs, we think that that coverage should continue and that ALEOs should be open and transparent. Any ALEO out there that is involved in culture and leisure should want to be transparent and should want to take on those requirements. I am going to be very rude and say that I cannot quite exactly remember your question.
I asked how local authorities and VOCAL can help ALEOs to meet the provisions of the act.
All local authorities now have an officer, if not a full-time one, or a team, on FOISAs. We are suggesting that ALEOs are all connected to a local authority or multiple local authorities so the local authority FOISA officer could provide assistance and training, as could VOCAL: we represent quite a range of different organisations, so we could also provide help, assistance and training.
Good morning to the panel. I should say at the outset that I am a regular user of Inverclyde Leisure’s facilities because I stay in the area.
I have no comment to add to what we have written. If it is the committee’s decision that we come under freedom of information legislation, we will.
Do you have anything to add, Mr Given?
No. I agree with Mr Vango.
Okay. I have one other point about the submission from Inverclyde Leisure, which mentions pool temperature readings. Can you provide me with a bit more information about how that information is gathered and stored?
We used the pool temperature readings as an example, but such examples can take some time. The pool tests are done in the first-aid room five times a day. We keep an update of the pool readings—pH and chlorine—to make sure that the pool is safe for the customer to use. One sheet is done five times a day. It is done every day of the year including Christmas day and new year’s day, to make sure that the information is up to date. I am not sure how far we can go back but if, for example, we were asked to provide pool readings for the past five years, that could be time consuming.
Is that information in an electronic system, or is it just kept on paper?
Unfortunately, it is all kept on paper. Most of our information is kept on paper. We are changing over to electronic systems, but a lot of paperwork is still being done.
If the regulations are passed, I take it that it would be a lot easier, were a freedom of information request to come in, for you to supply that information if it was in an electronic system.
Yes. I suppose we would have to scan in retrospective information, so initially we would be under the same type of pressure. However, we are looking at electronic systems to make our lives a little bit easier so that future requests are easier to deal with.
I have a supplementary question on the line of questioning from Mr McMillan. How long does the law say you have to keep the pool readings for environmental health services? I assume that there is a reporting mechanism.
I do not think that there is a legal stipulation for that—I will have to check—but we have a policy. For example, we could say that we have to keep the information for three years. As far as I know, we keep the readings indefinitely, but I am not sure about our policy at the moment.
I am quite surprised by your concerns around FOI requests, particularly those about pool readings. If you keep the information indefinitely, what is the problem with providing information that has been requested through an FOI?
The problem is just about copying the information and the time that it takes to deal with that. It takes time to go through all the information because it is done manually.
How much information do you have to provide to your 30 per cent funder, which is Inverclyde Council, on the operational running of the leisure services?
Council representatives attend board meetings six times a year, and we provide information monthly just to give some background on finances and on our activity in the Inverclyde area. So, we have two routes: monthly meetings and board meetings six times a year, which include discussion of finance and any development in the area.
Do you find those monthly meetings and reporting six times a year to be onerous?
No. We work in partnership with the local authority. It is good to have those meetings and it is a win-win situation for all of us.
The point that I am trying to make is about whether the information that the local authority receives would be vastly different from what might be provided in response to an FOI request from a member of the public.
The issue is how far the information is drilled into. In the examples that I gave, there is no doubt that there would be an additional strain on resource. The information that the local authority gets is stuff that we produce anyway. There would be additional work.
Convener, I am trying to find the words in terms of trying to understand—
I wonder whether I can help in some regard, Mr Wilson.
We have the monthly client meeting, which is what you are talking about. Craig—do you want to go into that?
Can I stop you? There is a difference between the monthly client meeting and the point that Mr Wilson is trying to make, which is about the body of elected members in Inverclyde Council that scrutinises Inverclyde Leisure and to which performance indicator information is supplied. Is that information very different from the information that would be required to respond to likely FOI requests?
We need to supply significant information to the internal audit team. As Kieron Vango said, we report to the board, and the council representatives on the board will report to their side—
I am sorry, Mr Given, but I am going to stop you again. I realise that you have your internal audit, but there must be some committee or other set-up in Inverclyde Council that follows the public pound that Inverclyde Leisure gets. I imagine that that body can also scrutinise your key performance indicators to ensure that best value is being achieved.
There are five councillors on the board and we present our KPIs to them.
I am sorry, but you are still missing my point. With ALEOs elsewhere, there are elected members on the board—it is always thus—but the council or councils that supply the organisations with the funding to provide services normally have a committee or sub-committee that is tasked with scrutinising what is going on and following the public pound. Who does that in Inverclyde Council?
There will be such a committee. As I said, I am new to my position. The previous chief executive would probably be able to give you the information.
The council’s internal audit team carries out the checks on us. It will report to that committee in the council.
So you do not regularly have to supply information directly to a council committee or appear in front of it to talk about what you are doing.
We do not appear before that committee, but internal audit does an audit on us regularly during the year. There is regular correspondence with the council about those procedures.
Okay. I find that interesting.
Mr Vango raised the issue of inputting data from the five pool tests that are done each day. You currently keep that information in hard copy rather than recording it electronically. What would be the difference for Inverclyde Leisure if it were to input the information electronically? Mr Vango expressed a concern that if somebody made an FOI request for information about the pool tests that were carried out on, for example, 4 September, a member of staff would need to find the hard copy of the results and photocopy it before Inverclyde Leisure could provide the information, so it would take time and effort to search for the information. If you kept the information electronically, it would be a case of tapping a couple of buttons on a computer and printing off the information, rather than having to send somebody to the archives to get the information.
We are looking at an electronic system for storing such information—we had someone in to give us a presentation on that the other day. We realise that we need such a system and that it would make responding to such requests easier.
Would the material that is held on such an electronic system include all the information that you think may be subject to an FOI request?
I think that it would cover most of it. What do you think, Craig?
It is very difficult to comment, because there are a lot of ifs, buts and maybes in respect of what we will be asked. The point that we are trying to make is that we need to set up our organisation in that way in order to be able to deal with FOIs. Having worked in councils previously, I know what is involved in that. We will set ourselves up in such a way if the order is passed; the issue is to get ourselves into the position of being able to do it.
As has rightly been said, a lot of organisations and councils employ one person to deal with FOI issues. We will perhaps have to look at employing someone—maybe not a full-time post, but a part-time one—to deal with FOI requests.
Mr Given’s answer leads me on to the question that I was eventually going to come to on the public perception of Inverclyde Leisure. The bottom left-hand corner of the headed paper on which Inverclyde Leisure made its submission says:
I agree. There is a perception, which perhaps also exists in a lot of the organisations that I work with, that we are part of the council.
My question is for Merrill Smith. Are you aware of any local authorities that have expressed concern either about the proposal or about their ability to help ALEOs deal with the new requirements that will be placed on them when they come under the FOI legislation?
We are not aware that any local authorities have expressed worry about the proposal. Because of the mechanism under which they are set up, a lot of ALEOs—the wholly owned bodies, such as the Scottish charitable incorporated organisations—already fall under FOI legislation and are undertaking to meet its requirements. Some bodies have decided that they want to do it anyway and are already covered and are undertaking that work.
You have partially answered what was going to be my follow-up question. Perhaps Mr Spittal might like to comment, too. There are plans—or, at least, intentions—to bring a number of public bodies into the ambit of FOI legislation. The Government seems to be starting with ALEOs. Even given your comments about the fact that some bodies are already implementing the legislation, do you think that it is right that they should come under the ambit of the act ahead of, for example, housing associations and so on?
I absolutely agree that that should happen. ALEOs need to come first, because they are a special case because of how they are governed. This piece of headed notepaper that I have before me, which is from Inverclyde Leisure, says:
My question has been partly answered already. What have you done in preparation for the possibility that the FOI extension will happen?
The umbrella organisation of which Inverclyde Leisure is a member, Sporta, is providing some FOI frameworks for us.
Has there been a costing? Do you have a figure?
Sporta works with a number of organisations. It will provide the systems and procedures for us. We have not yet allocated resources to deal with the issue, but we have information about systems and procedures.
Just to be helpful, it is the education and communities committee of Inverclyde Council that deals with Inverclyde Leisure.
I want to make a wee technical point. Section 1(2) of the order says that the order will come into force on 1 April 2014. Is it, therefore, your understanding that the amendment will cover only data that are created post that date?
From my colleagues in Sporta, I believe that information can be asked for retrospectively.
It is quite clear to me that, given that you will have the necessary processes in place, you will wish to be as co-operative as possible in relation to any data that have been gathered prior to that date, but it is not clear to me whether the legal position is that the provision would apply only to data that were gathered after that date. However, that might be a matter for the minister.
I want to ask about exceptions to FOI and explore the issue of commercial sensitivity, which is mentioned in the Inverclyde Leisure submission. Could you say a little more about that?
The issues that we mentioned in the paper concerned situations in which we might subcontract to private organisations, as we do with Aulds the bakers, for example. I would have thought that it would be exempt, as it is a private organisation.
Is that a situation in which the contract might be renegotiated with an FOI clause being included? I think that that was mentioned with regard to the contract.
I suppose that it could be, yes.
I would like to tease out your concerns about commercial sensitivity, which is something that I have mixed feelings about. Of course, I can understand that there will be circumstances in which there is commercially sensitive information that is in danger of being compromised. Equally, I have often felt frustrated when the issue of commercial sensitivity is used to stop legitimate requests for information coming into the public domain. I would like all the panel members to talk about what they know to be exempt, what they think should be exempt and what they fear will not be exempt if the SSI is passed.
Let us start with Mr Spittal, if Mrs Mitchell wants to hear everyone’s opinion.
I have no additional comment on the issue.
My experience of FOIs is from a city council point of view, and I have never come across a request that has given us a worry about commercial confidentiality. I am aware of our Scottish charitable incorporated organisation in Dundee, of course, and, although it has contracts, I question what difference the order would make in relation to commercial confidentiality. I think that it comes down to the terminology, and I am not knowledgeable enough about how far the order would go. Would it allow people to ask for information in the ALEO, or would it allow people to ask about contracts that the ALEO has? I think that that would make a difference.
Can the witnesses give examples—you can provide them to the committee later if you do not have them today—of cases in which commercial sensitivity has been cited as a reason for not giving information that has been requested in an FOI request? It would be useful to see how much of a problem there is. Inverclyde Leisure certainly said in its submission that there is a problem. I am looking for more information—some meat on the bones.
I think that we were thinking about Aulds the bakers. How far would the order go? Would it extend to stuff that we subcontract? I do not know the answer. Of course everything in our ALEO—in our trust—would be accessible through freedom of information, but would commercial contracts be included in that? We sub-lease to a crèche, as well as to the bakers, so would that be included too? I do not know.
I think that you mentioned rental values in your submission.
Yes. That is to do with our contracts with Aulds, for example.
Why should that information not be in the public domain, once the contract has been won?
I do not know. I suppose that we could declare information about stuff that we are renting out. I do not know whether Aulds would have an issue with that.
I do not think that it matters whether Aulds has an issue with that. The public have a right to know what their money is spent on, and the rental value is a clear indication of that.
Okay.
Convener, would it be useful to go back to what the order would actually do?
Please be brief, Mr Stevenson.
I just make the point that column 2 in the schedule makes clear that the order does not cover all activities. It covers only:
If there are no comments on that, I turn to Mr Wilson.
I have two brief questions. Mr Vango and Mr Given might not be able to answer this first one, but I am curious. How did Inverclyde Council deal with FOI requests about leisure services in the past? When the transfer took place, was that issue not raised with the new management of the ALEO?
I could not possibly comment on that, because I was not present.
Maybe that is a question that we can take up with Inverclyde Council. My second question is this: who owns the buildings and equipment that are operated by Inverclyde Leisure?
The buildings are owned by the council and leased to us, and we purchase the equipment in those buildings, such as fitness equipment—we do that on a five-year or 10-year basis.
Ms Smith, is that standard for other local authorities? Are you aware of any local authorities that have transferred the buildings and equipment to the ALEOs and have divested themselves of those buildings?
From my own experience and my knowledge of other councils, I am not aware of any that have transferred. In most cases, the council retains ownership of the buildings and leases them with a contractual agreement, whether that is a management agreement, a service level agreement or a memorandum of understanding. There are all sorts of different ways of doing it.
I thank all the witnesses for giving up their time today and for their evidence.
In our second panel of witnesses, I welcome Nicola Sturgeon, Deputy First Minister and Cabinet Secretary for Infrastructure, Investment and Cities, Andrew Gunn, FOI officer at the Scottish Government freedom of information unit, and Christine Reay, solicitor for commercial and business services at the Scottish Government. I invite the cabinet secretary to make an opening statement.
I am pleased to be here to speak in favour of the motion. This is the first time since the Freedom of Information (Scotland) Act 2002 came into force that coverage of the legislation has been extended beyond public authorities and bodies that are wholly owned by those public authorities. The proposed order will bring recreational, sporting, cultural or social bodies established or created by local authorities within the scope of FOISA where they are partly or fully financed by a local authority. That will help to ensure that the public and others have a right to ask those bodies, which are delivering public services and which receive public funding, for information. They will also have the right to submit requests both under the Freedom of Information (Scotland) Act 2002 and under the Environmental Information (Scotland) Regulations 2004.
Thank you, cabinet secretary. We have a briefing paper from the Campaign for Freedom of Information in Scotland, which talks of broken promises because there was a belief that the powers would be extended. When Jim Wallace was a minister, he outlined a range of bodies that he expected to be included in 2002. You have said that you see the order as the first part of an extension. Do you believe that it is right to extend the powers incrementally, ensuring that everything works and looking at the impacts that there will be on other bodies?
The short answer to that question is that, yes, I take that view. As I indicated in my opening remarks, I recognise the consensus that section 5 should have been used before now. I am not responsible for the decisions that Jim Wallace made, or the lack of them, when he was the Deputy First Minister, but today we are setting out a clear direction of travel. It is important that we move forward with a willingness to extend the principles of transparency through extending the coverage of the freedom of information regime. However, we must do so in a way that allows us to assess the impact on organisations, learning lessons as we make decisions about the future. I expect to open consultation on a further order next year, which will look at other arm’s-length bodies that are not covered by this order. In the past, there has been discussion of extending the FOI regime to housing associations and contractors working for local authorities and public agencies, and there is continuing debate about that. However, we need to move forward in a way that allows us to assess the impact, learn lessons and ensure that we are making the right decisions.
Just a few minutes ago, we heard that Inverclyde Leisure is a bit wary of FOISA because of commercial sensitivities, and we were given a brief outline of what it is afraid of. How do local authorities deal with commercial sensitivities under the 2002 act?
Under the current freedom of information legislation, there are a range of exemptions that allow public authorities to withhold information if they have a sound, legislation-backed reason for doing so. The legislation also allows people who seek information to ask for reviews and to go through an appeals process.
Good morning, cabinet secretary. Why has the Government prioritised ALEOs with responsibility for recreational, sporting, cultural and social facilities?
That comes back to my previous response to the convener. There is an inconsistency in the current situation—Glasgow Life, for example, is subject to freedom of information legislation while other bodies are not—and the order brings consistency to recreational, cultural and social arm’s-length bodies. We had previously consulted on including those bodies, which is why we have decided to start with them. However, as I said in my opening remarks, that does not mean that we are going to stop there. We have started on a direction of travel that we will want to take step by step.
Do you have any indication of the number of ALEOs that will be covered by the SSI and how many still need to be or could be covered?
This is a class designation and, as you will have seen from the terms of the order, we have not listed bodies in it. There are two reasons for that: first, freedom of information legislation is very much based on the function of organisations; and, secondly, if we list organisations in an order instead of having a class designation, the order will quickly go out of date as new organisations are set up and we will need another order to add them to the list. We expect the order to cover 23 organisations. Ultimately, if any of those bodies thinks that it should not be covered, that would be a matter for the Information Commissioner to reach a view on.
Do you have a rough idea of how many organisations we would be talking about if other classes were to be included?
Are you talking about organisations that are not included in the order?
I am talking about those organisations that are not sporting or cultural that would be covered if the order were extended.
I do not have a figure for that because, as you will appreciate, it is, apart from anything else, a moving situation as bodies get set up by local authorities. I do not have a figure for the number of organisations that could be covered by freedom of information; that would depend on the particular classes to which you decided to extend coverage and the order in which that happened.
Will the new legislation cover only new ALEOs or will it be retrospective? I suppose that I am talking about contractual arrangements.
I will try to answer that question in two parts. First, the legislation is retrospective with regard to the information that is held; in other words, it covers not just information from the date on which the order was passed. Once these bodies fall within the scope of the legislation, information that they hold historically can be requested under freedom of information.
I am trying to get at the issue of information in contracts or perhaps subcontracts that is currently not available or which is not given voluntarily but which might now be subject to the terms of the SSI and should be released.
Those organisations will become subject to freedom of information legislation, which contains a number of grounds on which information can be withheld. The organisation in question would have to argue that one of those grounds applied, but the point is that the organisations will be subject to freedom of information legislation in the same way that the Scottish Government and local authorities are.
So your short answer is that you do not foresee any real problem with existing contracts under this SSI.
I am not quite sure that I understand what you mean.
Under the terms of a contract, for example, it might have been agreed that certain information would not be released. However, under this SSI, it might be found to be pertinent to release such information.
All information that the organisations hold will be covered by the scope of FOI, but whether it is releasable will depend on whether it falls within an exemption in the FOI legislation. All the information that the organisations hold—not just from the date when the order comes into force but historically—will be covered by the scope of the FOI legislation.
I would appreciate a little more information on exemptions. What exactly are we talking about? What are the broad headings?
The exemptions are laid down in the 2002 act, which I do not have in front of me—[Interruption]—we now have it in front of us. The classes of exemption include things that might be commercially confidential.
That is helpful.
We are in danger of fundamentally misunderstanding what the order will do. It will not change the classes of information that are covered by freedom of information legislation or any of the potential exemptions. It will extend the range of bodies that are subject to freedom of information legislation. It is vital to be clear on that.
I understand that. Would you be in favour of promoting or looking at the inclusion of a freedom of information clause in ALEO contracts, so that we would not have to go down the more expensive route of appealing? Such a clause would iron things out. There is no doubt that disputes occur and that a lot of people are unhappy about whether information is commercially sensitive. There is an opportunity to look at freedom of information clauses when contracts are negotiated.
I am open to looking at anything that promotes transparency, but we are talking about the law and the Freedom of Information (Amendment) (Scotland) Act 2013 just went through Parliament.
As a former solicitor, you will know that lawyers have various interpretations of the law. I was simply trying to suggest something that would perhaps make things absolutely clear and concise.
I am not arguing with that, and I am trying to be sympathetic. I am just making the point that, ultimately, whether something is covered by freedom of information is, in the first instance, down to the interpretation of the person who is asked for the information, then the Information Commissioner and, ultimately, the courts.
What additional resources, if any, will the Scottish Government make available to support some of the voluntary sector organisations in gearing up to comply with the FOI legislation? I know that we have heard evidence from only one organisation, but it has not started work or allocated any resources to the area so far.
The order does not apply per se to the voluntary sector although, obviously, some of the bodies that might be covered consider themselves to be third sector organisations. On assisting organisations to be ready to comply with freedom of information, the Information Commissioner has said that she will do what she can and what is necessary to assist organisations with being ready to comply. Local authorities, which already comply with the legislation, are well placed to give appropriate assistance to organisations that will come under the ambit of the legislation for the first time.
I want to explore a little further the scope of the measure as it applies to ALEOs. The schedule to the order, at paragraph (b) in column 1, talks about a person
I apologise if I have not expressly made it clear what I thought would have been implicitly understood, which is that the information that is covered in terms of ALEOs is described in the order. On the example that you describe, I would want to get legal minds to consider whether, in that particular circumstance, that bit of an ALEO’s work would be covered by freedom of information. It might not be, because there are ALEOs that do economic development or regeneration work that are not covered by the order, although we might choose to consult on making such organisations subject to a future order. I do not want to give an absolutely definitive yes or no answer to that question without having a chance to consider the issue. However, the schedule to the order is clear on which ALEOs are covered and which functions of those ALEOs are covered.
I was not pursuing the issue of debt advice; I was merely saying that there will be activities that ALEOs undertake that are not covered.
I accept that.
It appeared from some of the earlier discussion that it was thought that all the relevant ALEOs’ activities would be covered.
I was assuming that we understood that we were talking about the functions that are laid down in the schedule to the order. To ensure that I do not inadvertently give another impression, I point out that it is the functions of the ALEOs that are laid down in the schedule that will be covered. There may well be other functions that will not be covered, and in future work we might want to broaden the functions that are covered.
That is fine. It is sufficient for my purpose to get that on the record.
Without going too deeply into the technicalities of the issue, I am not of the view that the position that you have just outlined—that the bodies in question would not be covered by obligations under the climate change legislation—is strictly accurate. However, I will be happy to respond in writing on that point, either directly to you or to the convener.
The 2009 act says:
We will seek clarification in writing.
I will be happy to provide some clarification on that point, which I do not think affects the passage of the order.
That is helpful.
My question builds on the question that the convener asked. The proposed change is significant but narrow in terms of the number of organisations that will be affected. I think that that is why the question has come up about why ALEOs are the first organisations to be covered by the extension of the FOI legislation.
It will. I will not list the organisations that will be covered now, because that would be to get the process round the wrong way, but, by definition, a broader range of organisations will be covered than the ones that we are talking about today. The consultation gives us an opportunity to be quite a bit broader than we are being in the order.
Good morning, cabinet secretary. In our earlier evidence session with the chief executive of Inverclyde Leisure, we heard about his ambition to extend the services that his organisation provides by, for example, also providing leisure services in Aberdeen. What would be the situation in respect of FOI if such ALEOs started commercial offshoots? Would those commercial offshoots be subject to FOI legislation?
They would be if they were wholly owned by the body in question and if the functions—to some extent this goes back to my discussion with Mr Stevenson—are captured by the schedule to the order that we are discussing. Obviously, a definitive answer cannot always be given to a hypothetical question, so I would need a concrete example of what a particular body was doing to be absolutely certain whether, in my view, it would be covered by the provisions that we are considering today.
For example, if an ALEO formed a partnership with one of the major private leisure providers, would the ALEO part of that partnership be subject to FOI? I am just trying to find out whether there are ways in which some ALEOs could find loopholes to exempt themselves from the FOI provisions.
First, I would hope that bodies would not do that. If they started to do so, that would be a material factor in our decisions about where we go next with FOI. I do not think that bodies should try to organise themselves in a way that gets them out of their obligations under freedom of information.
Thank you, cabinet secretary. We have no more questions, so we now move on to agenda item 4, which is formal consideration of motion S4M-07539, to approve the SSI on which we have just taken oral evidence.
Thank you very much, cabinet secretary.