Consultation on expanding Freedom of Information Act to private and third sector organisations response from SASW

This response draws on our members' professional expertise and reflects SASW's commitment to transparency, accountability, and rights-based approaches to social care. We recognise the complexity of balancing enhanced information rights with the practical challenges facing a sector under significant pressure.

Question 1: Do you agree that FOISA should be extended, where possible, to private and third sector run care homes?

RESPONSE: Yes

DETAILED VIEWS:

SASW strongly supports the extension of FOISA to private and third sector care homes, subject to appropriate implementation safeguards.

Our support is grounded in several key principles:

Parity of Rights: Currently, individuals receiving care in local authority-run care homes benefit from transparency that their counterparts in private or third sector care homes do not enjoy. This creates an unacceptable inequality in access to information based purely on the sector providing the service, not on the needs of the person receiving care.

Functions of Public Nature: Care home services demonstrably meet the criteria for functions of a public nature. They are:

  • Heavily regulated by statute through the Public Services Reform (Scotland) Act 2010 and associated regulations
  • Subject to mandatory Care Inspectorate inspection and oversight
  • Substantially publicly funded (64% of places are wholly or mainly publicly funded)
  • Providing services that would otherwise be the responsibility of public authorities
  • Meeting critical needs of vulnerable citizens

Enhanced Accountability: Social workers regularly encounter situations where families and individuals struggle to obtain information about care provision, staffing arrangements, incident management, or decision-making processes. Whilst safeguarding protocols exist, FOISA would provide an additional mechanism for appropriate transparency where concerns arise.

Supporting Professional Practice: Social workers have statutory duties to assess needs, arrange care, and monitor wellbeing. Access to information about provider practices, policies, and performance can support effective professional oversight and person-centred practice.

Consistency with Care Reform Agenda: Scotland's ongoing care reform, including development of the National Care Service and National Social Work Agency, emphasises rights-based approaches, co-production, and transparency. Extending FOISA to care homes aligns with these principles.

However,implementation must be carefully managed to avoid unintended consequences including:

  • Disproportionate administrative burden that diverts resources from care delivery
  • Potential deterrent effect on sector participation at a time of workforce crisis
  • Risks to individual privacy through poorly considered requests
  • Need for sector-wide training and support


 

Question 2: Do you agree that FOISA should be extended, where possible, to private and third sector run 'care at home' services?

RESPONSE: Yes

SASW supports extension to 'care at home' services, recognising that many of the same principles apply as for care homes, with additional considerations regarding service boundaries, definition of public funding, proportionality, and integration with existing rights. 'Care at home' services are equally critical to wellbeing and meet the same criteria for public functions.

Question 3: If FOI law were to be extended, which approach best reflects your view?

RESPONSE: (a) Information about all such services should, where possible, become subject to FOI law, irrespective of the level or type of public funding.

SASW believes that public funding level should not be the determining factor for FOISA application. The key test under Section 5 of FOISA is whether organisations exercise functions of a public nature. Regulatory framework applies universally regardless of funding arrangements, and creating different transparency rights based on funding would establish an unacceptable two-tier system.

Question 4: Should extension apply to services for children and young people?

RESPONSE: Yes

SASW supports inclusion of children and young people's services with specific safeguards. Children in care are among our most vulnerable citizens and entitled to enhanced transparency. This aligns with UNCRC rights, supports corporate parenting responsibilities, and provides essential accountability. However, robust application of data protection exemptions is essential given very small service sizes and the challenge that presents to maintaining GDPR.

Question 5: Issues specific to children and young people's services

Key opportunities include enhanced accountability for looked after children and supporting children's rights to participation. Particualr challenges include the complexity of data protection due to very small service sizes (average 4.5 places), potential impact on therapeutic relationships, complexity of parental rights, and resource pressures. Essential mitigations include comprehensive guidance, specialist training, phased implementation, and specific monitoring of impact on children's services.

Question 6: Should provider size affect whether FOISA applies?

RESPONSE: No

SASW does not support size-based exemptions, whilst recognising need for proportionate implementation. Rights should not depend on provider size. Previous extensions did not discriminate by size, and small size does not negate public function. However, we recommend phased implementation, enhanced support packages for smaller providers, proportionate requirements on providers, and developing infrastructure to support the sector. The focus should be on supporting smaller providers rather than exempting them.

Question 7: What would assist care providers in discharging FOISA obligations?

SASW recommends a comprehensive support package including:

  • Guidance and Templates: Sector-specific guidance, template documentation, practical guides, scenario examples
  • Training: Structured programme for different roles, extended induction period, ongoing professional development
  • Support Infrastructure: Dedicated helpline, online resources hub, representative organisation support, collaborative arrangements
  • Systems and Technology: Records management support, technology solutions, website and publication support
  • Financial Support: Setup grants, fee-setting recognition, ongoing resource acknowledgement

Question 8: What would help people access their FOISA rights?

Essential supports include:

  • Accessible information in plain language, multiple formats, through community venues
  • Comprehensive advocacy and advice service support
  • Simple, flexible processes accepting multiple request methods
  • Proactive information provision through publication schemes
  • Public awareness campaigns and targeted outreach
  • Addressing barriers for disabled people, older people, and those affected by socio-economic disadvantage

Question 9: What categories of information would people most likely seek?

Based on SASW members' experience, anticipated categories include:

  • Staffing: Qualifications, training, levels, ratios, turnover, supervision
  • Care Quality: Care approaches, outcomes, quality measures, care planning, specific practices
  • Safeguarding: Policies, incident management, protection referrals, complaints
  • Financial: Fee structures, financial viability, contracting arrangements
  • Facilities: Physical environment, health and safety arrangements
  • Policies: Operational policies, governance structures, inspection reports


 

Question 10: Comments on business and regulatory impact

SASW recognises real business and regulatory impacts including initial setup costs (£2,000-£25,000 depending on size), ongoing operational costs, opportunity costs of staff time, and cumulative regulatory burden. However, offsetting benefits include efficiency gains, reputational benefits, and risk management improvements. Extension is justified in principle given functions of public nature, but impacts must be mitigated through financial support, proportionate implementation, integrated approaches, and ongoing monitoring.

Question 11: Impact on data protection rights and obligations

FOISA and data protection law are complementary frameworks sharing objectives of balancing transparency with privacy. Care providers already manage highly sensitive personal information, so this extension builds on established competencies. Key challenges include the highly personal nature of care information, small service sizes creating identifiability risks, and blurred boundaries between service and personal information. Section 38 exemption protects personal data when properly applied. Essential mitigations include developing comprehensive guidance on applying exemptions, training, DPO involvement, and care-specific considerations, particularly for children's services.

Question 12: Equalities impact across protected characteristics

SASW identifies the following key impacts:

  • Age: Older people are primary beneficiaries but need accessible formats; children require enhanced protections of their privacy
  • Disability: Positive impacts in supporting autonomy but accessibility is essential to avoid barriers
  • Race: Transparency benefits accountability but information must be available in community languages
  • Sexual orientation/Gender reassignment: Accountability for inclusive care but small numbers create risks  to privacy that require careful data protection
  • Comprehensive Equality Impact Assessments are essential, with lived experience input.

Question 13: Human rights impacts

FOISA extension advances multiple human rights including Article 10 ECHR (right to information), Article 8 (private life through quality care accountability), rights to human dignity and autonomy, UNCRPD disability rights, UNCRC children's rights, and right to family life. Some tensions exist (particularly privacy vs information) but are resolvable through proper balancing using personal data exemptions. The net human rights benefit is significant. An extension aligns with Scotland's National Action Plan for Human Rights and positions Scotland as leader in rights-based care. Comprehensive Human Rights Impact Assessments are essential.

Question 14: Impact on individuals affected by socio-economic disadvantage

People affected by socio-economic disadvantage potentially benefit most from enhanced accountability but face greatest barriers including digital exclusion, process complexity, cost barriers, language issues, power dynamics, and lack of support. Essential mitigations include accessible information in multiple formats, comprehensive advocacy support, free access, simple processes, proactive information provision, targeted outreach, and monitoring of differential access. 

CONCLUSION

SASW welcomes this consultation as an important step toward enhanced transparency and accountability in Scotland's care sector. We support extension of FOISA to private and third sector care homes and 'care at home' services in principle, subject to careful, phased, well-supported implementation that addresses the legitimate concerns of providers whilst maximising benefits for people who use care services.

Our response emphasises:

  • The strong principled case for extension based on the public nature of care functions
  • The importance of equality of information rights regardless of which sector provides care
  • The need for comprehensive support infrastructure for providers
  • Critical accessibility requirements to ensure all can exercise rights
  • Careful management of data protection and privacy alongside transparency
  • Particular consideration for children's services and smaller providers
  • Human rights foundations and alignment with care reform
  • Attention to equalities and socio-economic disadvantage throughout implementation

SASW stands ready to work with Scottish Government, care providers, people who use services, and other stakeholders to ensure implementation that genuinely advances transparency and accountability whilst supporting a sustainable, high-quality care sector.

We believe that properly implemented, FOISA extension can contribute to realising Scotland's vision of care services that truly respect the rights, dignity, and autonomy of all who rely on them.