Freedom of Information (FOI) was extended to apply to Registered Social Landlords (RSLs) from November 2019 through an Order made by Scottish Ministers. This means RSLs now have a legal duty to provide the public with certain information.

However, there has been uncertainty over what exactly RSLs must disclose under the Freedom of Information (Scotland) Act 2002 (FOISA).

Read more: What Does Freedom of Information Mean For RSL Procurement?

The 2019 Order extended the coverage to RSLs in relation to certain specified functions. These are as follows:

• “Any activity in relation to the prevention and alleviation of homelessness.”
• “Any activity in relation to the management of social housing accommodation (i.e. where an RSL has granted a Scottish secure tenancy or short Scottish secure tenancy).”
• “Any activity in relation to the provision and management of sites for gypsies and travellers.”
• “Supplying information to the Scottish Housing Regulator (SHR) in relation to its financial well-being and standards of governance.”

As well as these additional obligations, the recent decision by the Scottish Information Commissioner (SIC) involving Glasgow Housing Association (GHA) has provided more clarity to RSLs on what exactly they must disclose under this Order. The circumstances of this decision involved an application being made for a request for information to GHA.

Decision Background

The applicant requested the total financial value and number of “Compromise Agreements” (e.g. an agreement to regulate the terms of a mutually agreed departure of an employee) between 2009 and 2019 and the value and the total number of such agreements for each of these years. 

GHA provided some of the information requested, withheld some information on the basis that disclosure would breach the data protection principles and advised it did not hold any information from 2009 – 2013.

The applicant appealed to the SIC on the basis that they believed GHA would hold information on Compromise Agreements from 2009 – 2013.  The applicant also complained about certain information incorrectly being categorised as personal data.

Read more: Contractors in Financial Difficulties: What Can Registered Social Landlords Do?

The SIC’s Decision

The SIC investigated and found that GHA largely complied with the FOISA in responding to the request and by the end of the investigation, GHA had correctly identified all the information falling within the request and the two settlement amounts were exempt from disclosure. However, the SIC also concluded that additional (pre-2014) information was held by GHA and required them to issue another review response in respect of this.

Interestingly, the SHR was asked to (and did) provide a detailed response in this case about the extent of the obligation on RSLs to notify it of severance payments and settlement agreements with staff between 2009 and 2020.

Lessons for RSLs

Much of the decision notice is concerned with whether or not the information requested falls within the scope of the 2019 Order and how to handle requests for information that sit outside of the Order. In particular:

• It may be necessary to review staff job titles and role profiles to determine if information relating to specific staff members falls under the 2019 Order.
• As ‘Compromise Agreements’ now need to be reported to the SHR as a notifiable event this suggests that details of any future Compromise Agreement (even for ‘non-social housing’ RSL staff) may be subject to FOI (although various exemptions under the FOISA might apply).

• In cases where information requested is a mix of information which is subject to the 2019 Order and information which is not – RSLs should consider informing the requester of the scope of the 2019 Order and what information falls under it.

RSLs should also note that the SIC found, in this decision, that certain information was being held by GHA’s solicitors on behalf of GHA. This meant that the information in question was held by GHA for the purposes of FOI despite not being on their internal systems.

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