Extension of Freedom of Information in (Scotland) Acts 2002 (FOISA) to private and third sector providers of care home and ‘care at home’ services

The Freedom of Information (Scotland) Act 2002 (FOISA) and Environmental Information (Scotland) Regulations 2004 (EIRs).

FOISA provides a right to access information held by Scottish public authorities.  It places duties on all Scottish public authorities to:

• Proactively publish certain information about their work
• Provide information in response to requests, within 20 working days
• Provide advice and assistance to requesters of information

The EIRs provide similar rights, specifically for environmental information.  Release of information under FOISA or the EIRs is considered to be release into the public domain. 

FOISA and the EIRs contain exemptions to protect sensitive information, including personal data. Therefore, FOISA and the EIRs are generally not the route by which any individual should seek to access information which relates to themself personally or to any other individual. To access their own personal data, individuals should exercise their subject access rights under data protection law.

Scottish Ministers’ power to extend coverage (section 5)

Under section 5 of FOISA, the Scottish Ministers may designate as a ‘Scottish public authority’, for the purposes of FOISA and the EIRs any organisations which:

1. 1. appear to the Scottish Ministers to exercise functions of a public nature; or
   2. are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority

Factors based approach to extending coverage

FOISA does not provide a definition of ‘functions of a public nature’. However, the Scottish Government considers that these factors can be used as part of its determination of whether an organisation – or category of organisations - delivers such functions:

• the extent to which particular functions are derived from or underpinned by statute, or otherwise form part of the functions for which the state has generally assumed responsibilities;
• the extent of public funding of the activity;
• whether the functions are of a nature that would require them to be performed by a public authority if the body did not perform them;
• whether the body exercises extensive or monopolistic powers;
• the extent to which the body is subject to state regulation, oversight or control.

Purpose of this consultation

The purpose of this consultation is therefore to:

• inform the Scottish Government’s determination of whether (and when) providers of care home and ‘care at home’ services can be considered to be providing functions of a public nature, or to be delivering the functions of Scottish public authorities under contract.
• subject to that determination, to inform the Scottish Government’s decision-making regarding the use of Ministers’ power to extend FOISA to such services.

Care Home and ‘Care at Home’ Services in Scotland

A care home service is a service that provides accommodation together with care to meet an individual’s needs, which might include nursing or personal care or support. 

A ‘care at home’ service provides personal care or support to a person within that person’s home.  Care at home means getting help in one’s own home with everyday tasks. This can include things like:

• Getting dressed
• Taking a bath or shower
• Making meals
• Taking medicine

 ‘Care at home’ services enable individuals to live independently or with greater autonomy.  They generally provide care tailored to the individual's specific requirements all with a view to promoting the well-being and quality of life of the person receiving care while maintaining their dignity and rights.

Provision of care home and ‘care at home’ services in Scotland

On 31 January 2025 there were 1,351 care home services in Scotland of which 823 were operated by private sector providers and 290 by voluntary or not for profit providers. 

There were 1,232 ‘care at home’ services in Scotland.  Of these 567 were operated by private sector providers and 480 by voluntary or not for profit providers. 

For a fuller discussion of these issues, please see sections 3 and 4 of the consultation paper.