Registered Social Landlords

The Order applies to Registered Social Landlords and connected bodies (see the Schedule to the Order).

Registered Social Landlords: a body is an RSL if it is listed in the Scottish Housing Regulator's Register.

Connected bodies/subsidiaries: an organisation is a "connected body", and is subject to the Order, if it is a subsidiary of an RSL.

There's further guidance on when subsidiaries may fall within the scope of the Order below.  

An RSL or subsidiary is only subject to the Order to the extent that it carries out one or more of the following functions (see the Schedule to the Order):

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

It's important to note that FOI rights only apply to information held by an organisation relating to the functions covered by the Order.

If both the RSL and the body in question are registered with the Financial Conduct Authority (FCA) as "registered societies", the body in question will be a subsidiary if:

(a) the RSL is a member of the body in question and controls the composition of its committee; or

(b) the RSL can exercise a majority of the votes to which the body's members are entitled under its rules.

If the RSL is registered with the FCA as a "registered society" but the body in question is not, but is a company or body corporate, the body in question will be a subsidiary if:

(a) the RSL is a member of the body in question and controls the composition of its board of directors; or

(b) the RSL holds more than half in nominal value of the body's equity share capital.

If neither the RSL nor the body in question are registered with the FCA as "registered societies", but both are companies or bodies corporate, the body in question will be a subsidiary if:

(a) the RSL holds a majority of the voting rights in the body in question; or

(b) the RSL is a member of the body and has the right to appoint or remove a majority of its board of directors; or

(c) the RSL is a member of the body and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it; or

(d) the body in question is a subsidiary of another company that is itself a subsidiary of the RSL (i.e. if there is a chain and the body in question is not the direct subsidiary of the RSL, but is a subsidiary of the RSL's subsidiary)

Remember a subsidiary is only subject to the Order in relation to information held for any of the functions listed in the Order.

RSLs and subsidiaries must first satisfy themselves whether or not they fall within the scope of the Order. Any organisation which is unsure should seek their own advice.

The Commissioner cannot advise individual organisations on their own structure or functions, and will only be able to consider individual cases in detail if an appeal is made under FOI or the EIRs, or a compliance issue is investigated.

As FOI rights only apply to information held by an organisation in relation to the functions covered by the Order, when an information request is received, organisations will have to consider the requested information to decide if FOI rights apply.

If FOI rights do apply to the information, the authority must respond in line with the duty to respond to requests.

If an authority considers that FOI rights don't apply to the information, it is good practice to:

• Explain to the requester that not all of the information it holds is subject to the FOI Act or the EIRs
• Set out the reasons why (for example, the information might relate to the provision of services for owners and occupiers of houses or the management of non-social housing accommodation, meaning that it is not covered by the Order)
• Consider the duty to advise and assist (for example, is there information which is covered by the Order which might help the requester?)

It's also good practice to notify the requester of their right of review and right to appeal against the decision.

• Search thoroughly - make sure you search thoroughly for all information covered by the request, so your final decision is based on the actual information held
• Consider whether information can be disclosed anyway - regardless of whether there is a right to the information, consider whether it can just be disclosed. Disclosing information is generally easier than withholding it. It's also an opportunity to demonstrate a commitment to openness by telling requesters that they can have the information, even though it's not covered by FOI law
• Consider the requested information carefully - examine the requested information carefully before drawing conclusions. Are you sure all of the information falls out of the scope of FOI?
• Be prepared for combined responses - a broadly-framed request might ask for some information that is covered by FOI law, and some which is not. Be prepared to respond, e.g. by disclosing information covered by the Order and explaining why other information isn't covered by the Order
• Use clear language - FOI is a legal process, but do what you can to help people understand that process. Explain your decisions clearly, thinking about the needs of individuals
• Treat FOI as part of customer service - take a customer-focused approach to your FOI duties. Always remember your duty to advise and assist
• Plan for FOI - think about the information you hold that will fall outside the scope of FOI. Is it possible to identify this information when it's created, to reduce time when considering requests?

Here are some of the resources that we developed to support Scottish Registered Social Landlords (RSLs) and their subsidiaries as they worked towards the implementation of FOI on 11 November 2019.

Materials: 

• CEO Conversations – presentations from the RSL and CEO Conversation events held on 29 April and 1 May 2019
• FOI Checklist – a checklist to help organisations prepare for FOI
• FOI - Get it right first time poster – our downloadable poster with practical advice on meeting FOI duties

Designation Order

• RSL Designation Order under section 5 of FOISA

The Commissioner is not able to provide a definitive list of the organisations covered by the Scottish Ministers' designation order. This is because the terms of the Order mean that individual coverage will depend on a number of factors, including the corporate structure of a subsidiary and its parent RSL, the relationship that exists between them, and the functions and activities of the subsidiary.

While we anticipate that many RSL subsidiaries will fall within the scope of the definition, it will be up to individual RSLs and subsidiaries to satisfy themselves as to coverage. The Commissioner will only be able to consider individual circumstances in detail when investigating specific appeals.

Further up this page, you will find published information to assist organisations in making this assessment.

The legal requirement is for RSLs to publish information only where it relates to the functions specified in the Designation Order. An RSL which publishes information on the functions in the Order - having taken due regard to the public interest considerations set out in section 23(3) of the FOI Act - will meet the publication duty under the Act.

RSLs might want to publish information over and above the statutory requirement. For example, an RSL may want to publish additional information where a minute or report contains information relating to both designated and non-designated functions, and the RSL has no concerns around the publication of the "non-designated" information. In such cases it would, of course, be free to do so.

However, to avoid confusion for service users and staff, it will be good practice for information which relates solely to "non-designated" functions to be clearly labelled. Our recommendation is either:

• for this information to be listed in the Guide to Information under each class within a subsection titled "Additional information", with text making clear that the additional information is published over and above the publication scheme requirement; or
• for the additional information not to be separately listed or described in the RSLs Guide to Information

There's more information on meeting the FOI duty to publish.

If a request is received for information which does not relate to the functions covered by FOI or to the EIRs there will be no statutory duty to respond to that request under FOI law. FOI rights will not apply to that information.

However, a requester who considers that the information does fall within such a function can appeal to the Commissioner. The Commissioner would then, as part of that process, determine whether or not the information sought falls within the functions.

As a result, if an RSL considers that FOI rights don't apply to the requested information, it is good practice to:

• explain to the requester that not all of the information it holds is subject to the FOI Act or the EIRs
• set out the reasons why (for example, the information might relate to the provision of services for owners and occupiers of houses or the management of non-social housing accommodation)
• consider the duty to advise and assist (for example, is there information which is covered by the Order which might help the requester?)

It's also good practice to notify the requester of their right of review and right to appeal against the decision.