In November 2019 no one could have predicted what a difficult year 2020 would prove to be. However, a new report published by the Scottish Information Commissioner (SIC) highlights that RSLs are coping well with their new FOI obligations despite the challenges raised by COVID-19.

The Report contains a number of key figures, namely:

• 97% of RSLs and subsidiaries who responded were confident in their ability to respond to FOI requests.

• The majority of respondents confirmed that FOI had not contributed significantly to their workloads with most RSLs receiving 12 or less requests throughout 2020.

• Most requests resulted in all of the information requested being shared. Where information was withheld RSLs were most likely to refuse to provide information for data protection reasons, followed by the information already being accessible.

• About 80% of respondents believed that they were publishing more information due to FOI

These trends broadly reflect what our RSL clients have said their own experiences with FOI have been throughout the last year. 

Besides the headline comments the Report also highlighted that there are still questions within the sector about what exactly is covered by a RSL’s ‘FOI Functions’ and which subsidiaries should be subject to FOI (for more information on this see our blog). To date SIC has not had to issue a decision on this matter however this is certainly an area which RSLs should watch with interest to see how matters develop.

Interestingly, looking at the statistics reported by RSLs on FOI over the last year, the number of requests received under the Environmental Information (Scotland) Regulations (which give the public a separate right to access ‘Environmental Information’) were significantly lower than FOI requests. RSLs should keep in mind that where they receive requests for Environmental Information (which can be wide ranging and will likely relate to developments, major repairs, building inspections etc.) then these should be handled under the Regulations opposed to FOI.

Finally, whilst data protection considerations and/or information already being accessible were the most commonly used reasons for refusing to provide held information – a number of requests were also refused on the basis that the information was either: confidential or harmful to commercial interests if disclosed.

Whilst it’s not surprising that these exemptions are commonly used, they do highlight that it is crucial for RSLs to:

• engage with contractors on FOI (as often you will need their input in order to use these exemptions); and

• ensure any contract and/or procurement documentation makes provision for FOI obligations (so for example, does not contain blanket confidentiality undertakings)

The sector should be pleased at how it has managed the new FOI obligations against the difficult circumstances of the last year and it will be interesting see if any answers emerge over the next year about some key questions RSLs have about how FOI interacts with the sector.

If you, or anyone in your organisation, requires assistance with FOI or the Environmental Information Regulations please feel free to contact our team.