The Scottish Information Commissioner recommended that Freedom of Information (FOI) laws should be extended to cover registered social landlords (RSLs). The extension, it is claimed, will lead to greater accountability, transparency and improvements in decision-making.
Whether in response to frequent ad hoc inquiries or on their websites, RSLs already actively make information available. As of June last year, they are also subject to the Environmental Information (Scotland) Regulations (EIRs), which provide for access to environmental information held by or on behalf of social landlords.
Social landlords are subject to more scrutiny than ever before in a sector which is heavily regulated. The Scottish Housing Regulator’s Regulatory Framework and the Scottish Social Housing Charter require landlords to be open and transparent in conducting their activities. The Regulator is itself subject to FOI and the information underlying the published results may be accessed by making an FOI request to the Regulator.
A dissatisfied service user can also use the landlord’s complaints policy, which could lead eventually to action from the Scottish Public Services Ombudsman.
There is therefore sufficient pre-existing impetus on social landlords to make as much information available as possible. Throwing FOI into the mix will only add to the regulatory burden and may, in the present author’s opinion, give rise to confusion for social landlords and service users alike.
For example, would a tenant dissatisfied with the progress of a repair rely on the landlord’s complaints policy or FOI to resolve the issue? Should the complaint be handled both under the complaints policy and the FOI process? An FOI request need not make reference to the fact that it is an FOI request.
While the ultimate outcome for the tenant under both routes should be identical it is not difficult to envisage situations where social landlords’ staff may be confused as to which route should be used and may opt for the comfort of the familiar complaints route when FOI ought to be engaged.
Handling FOI requests involves a significant expenditure from a cost and HR perspective. Scottish Government research estimates the average cost at £231 and involving seven hours of staff time. The maximum fee that can be applied is £50 and for that applicants get at least 40 hours of staff time. It is likely that FOI will result in scarce resources being diverted away from core service delivery, which will likely have an effect on landlords’ investment in new homes and regeneration projects.
If the scope of FOI is extended in Scotland, social landlords must be given time to adjust. In particular, staff will require training on FOI and how to recognise and handle requests, a charging scheme must be developed and template documentation will need to be prepared to ready landlords for the burgeoning FOI floodgates. Staff will also need to be prepared to provide advice and assistance to applicants and be encouraged to actively disseminate information using the publication scheme. Putting more information into the public domain will likely reduce the number of FOI requests received.
My experience of advising social landlords highlights that they are only just coming to terms with the EIRs and are still in the process of putting the necessary policies, training and procedures in place.
The Scottish Government currently has no plans to extend the coverage of FOI. It is, though, committed to further consultation in the spring, which may result in an extension order being introduced in the autumn of 2015. Any such order may only extend FOI to large scale voluntary transfer housing associations or it may apply across the board. Whatever happens, the months ahead will give rise to heated and polarised debate on the issue.
• Daradjeet Jagpal is an Associate in Harper Macleod’s Public Sector & Housing team: www.harpermacleod.co.uk