Why should FOIS be extended?
- The consultation notes that over half of such care services in Scotland are delivered by either private or third sector organisations, many of which receive public funding to do so.
- These services would be treated as carrying out “functions of a public nature” and would be subject to the same FOI duties as those placed on public care home and care at home services.
The Scottish Government is consulting on the extension of FOIS because of the importance of these services and its commitment to individuals’ rights to information about them.
What does the consultation ask?
The consultation aims to gather opinions from a wide range of parties, including members of the public and those using or working in the care sector. The consultation particularly asks whether the extension of FOIS:
- should only apply where certain levels of public funding are provided;
- should also apply where such services are provided to children and young people;
- should only apply based on the size of the service (meaning that providers delivering the smallest care services could be exempt).
If FOIS is extended, what does this mean for service providers?
- The extension of FOIS would place a significant burden on care providers; therefore, the consultation also seeks views on how, whether and when to implement the proposed extension.
- Care providers caught by the extension of FOIS would need to understand their new obligations, train staff to recognise and respond to requests for information in line with FOIS, and ensure requests are responded to in compliance with obligations under data protection legislation.
- The extension of FOIS would also place a statutory duty on private and third sector providers to proactively publish information about their work.
It is anticipated that the Scottish Government will also publish guidance aimed at supporting affected providers.
As the proposed extension is currently in the consultation period, it can be expected that significant amendments will be made to the plans as the process progresses.
The consultation window closes on 30 March 2026 and the Scottish Information Commissioner will publish its own consultation response. You can submit your views here.
This article was co-authored by Rhona MacLeod, Legal Administrator in MFMac's Commercial team.
