The Freedom of Information ("FOI") (Scotland) Act 2002 came into force on 1 January 2005 and creates an entitlement to receive information held by a public authority upon request. The Act applies to public bodies including the Scottish Government and local authorities. However, the provisions of the Freedom of Information Act have never been extended to housing associations.

The Scottish Information Commissioner has recently called for the Act to be extended to cover those bodies which are responsible for social housing. In the Commissioner's Report, 'FOI 10 Years on, Are the Right Organisations Covered?' she points out that over 15,000 Scottish households have lost certain rights under Freedom of Information legislation following housing stock transfers from local authorities since 2005.

The Act contains provisions allowing the Scottish Government to extend its application to bodies providing functions of a public nature, but the Commissioner points out that this power has only been used once in the last ten years, in relation to local authority leisure and culture trusts.

According to the report, 75% of people strongly agree that it is important for the public to be able to access information held by public authorities. Therefore it makes several recommendations.

The Scottish Government should:

• Put in place a policy to ensure obligations under the Act are migrated whenever a body delivering public services changes
• Review and identify where rights under the Act have been lost and reinstate them
• Consider a factor-based approach to the extension of duties under the Act, which relates directly to whether a body is providing public services
• Immediately extend the ambit of the Act in relation to access to information rights about social housing administered by housing associations, and private pensions

These proposals, if acted upon by the Scottish Government, will obviously have a significant impact on housing associations and we are watching developments with interest. No doubt housing associations will be equipped to deal with FOI requests and, indeed, may already respond to requests for information from the public on how they provide services. However, it will be essential for the Scottish Government to ensure that housing associations are afforded all necessary support in the event that they are brought into the FOI regime.

Keep checking our blog for further developments on the Freedom of Information Act. If you have any questions on freedom of information, please contact us.