Tag Archives: Registered Social Landlords

Information Law Review of 2019

Well, it is that time again; the beginning of a New Year and therefore time for my third annual look at what happened in the world of information law in the previous twelve months and what those with an interest in the field should be looking out for in 2020. I would like to begin by wishing all readers of the Information Law Blog, both new and old, a very happy New Year.

My reviews of 2017 and 2018 began by looking at the case of Various Claimants v WM Morrisons Supermarkets Limited. I shall keep the tradition going by looking once again at this case. In 2018, the Court of Appeal dismissed the appeal by Morrisons against the decision of Mr Justice Langstaff holding them vicariously liable for the actions of an ex-employee. This case rumbled on again in 2019, with the Supreme Court hearing an appeal by Morrisons on 6th and 7th November. By the end of 2019, the Supreme Court had not yet issued its judgment and so that will be something to look out for in 2020; the Supreme Court’s judgment (although concerned with the Data Protection Act 1998, rather than the GDPR and Data Protection Act 2018) will have ramifications for data subjects and controllers, regardless of which way it goes.

Brexit continued to be a feature of 2019 in the Information law world. We have seen the changes that will take effect in data protection law as a result of the UK’s withdrawal from the European Union, which is now scheduled to take place at the end of this month. Brexit, however, will not stop being a feature of information law at 23:00 on 31st January (assuming there are no further delays). We will be in a transition period until the end of the year, but we don’t yet know exactly what we’re transitioning to which might start to become clearer by the Summer.

Brexit also featured in the information law world in other respects as well. There are still some data protection and privacy concerns floating around from the 2016 referendum on the UK’s membership of the EU. Indirectly related to that have been proceedings in the Upper Tribunal involving UKIP and in also in the First-Tier Tribunal. If reports are anything to go by, proceedings in the First-Tier Tribunal at the end of 2019 could result in an extremely critical decision against the Commissioner, so that is something to look out for in 2020.

We also saw the first GDPR administrative fine issued in the UK by the Information Commissioner (some 19 or so months after the GDPR became applicable and quite a bit behind other regulators in other EU Member States). The Commissioner has issued two Notices of Intent against two other Controllers (that we’re aware of) both of which were due to expire this month, but it has been confirmed by the Information Commissioner that the statutory six month period has been extended by agreement (in accordance with the statutory provisions). The reasons for this have not been made public at this time.

Just before Christmas the Advocate General of the European Court of Justice gave his opinion in Data Protection Commissioner v Facebook Ireland & Schrems concerning standard contractual clauses. We can expect a decision from the European Court of Justice to follow soon, whether that is before or after “exit day” at the end of January remains to be seen.

In the wider field of privacy law, the Court of Appeal took a look at the judgment of Mr Justice Arnold in the case involving Channel 5’s fly-on-the-wall documentary ‘Can’t Pay? We’ll Take it Away’. The Court of Appeal dismissed the appeals by the Respondents in respect of liability and the cross-appeal by the Claimants on the issue of quantum of damages. Meanwhile, in Scotland, Lord Bannatyne (for the first time) declared that there exists in the law of Scotland a common law right to privacy.

In May, Information Notices were again a feature of the decisions flowing from the First-Tier Tribunal; this time, however, it was concerning the Commissioner’s powers under the Freedom of Information Act 2000. The Tribunal confirmed that the Commissioner can issue an information notice in order to obtain information as part of her process for determining whether a person is a public authority for the purposes of the Environmental Information Regulations 2004.

In 2019, the Scottish Parliament’s Public Audit and Post-Legislative Scrutiny Committee began undertaking Post-Legislative Scrutiny of the Freedom of Information (Scotland) Act 2002. In 2019, I gave both written and oral [pdf] evidence to the Committee. The Committee is expected to release its report and recommendations next month.

In 2019, we saw the expansion of FOI in Scotland with Registered Social Landlords formally being designated as Scottish public authorities for the purposes of the Freedom of Information (Scotland) Act 2002.

We also had one of those rare things: a decision from the Court of Session in an appeal against a decision of the Scottish Information Commissioner. In the sole decision in such an appeal issued by the Court of Session in 2019, my client successfully challenged (on a point of law) a finding by the Commissioner that information he had requested was not held by a local council for the purpose of the Freedom of Information (Scotland) Act 2002. This case provides some useful guidance on determining whether information is held, or not, for the purposes of the Freedom of Information (Scotland) Act 2002.

Alistair Sloan

If you would like advice or assistance with Privacy and Data Protection matters or with UK and Scottish Freedom of Information requests contact our team on 0141 229 0880.

FOI in Scotland: Registered Social Landlords

Last week the Scottish Ministers laid The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2019 (Draft) before the Scottish Parliament for the approval of the Parliament, as they are required to do in terms of the Freedom of Information (Scotland) Act 2002 (“FOISA”). This order is a long anticipated order to bring Registered Social Landlords (“RSLs”) within the scope of FOISA by designating them as Scottish public authorities. If approved (and there is nothing to suggest that the Order will not be approved by the Scottish Parliament), it will mean that RSLs (and their subsidiaries) will be designated as Scottish public authorities from 11 November 2019. Some had been hoping that they would have been designated from April this year, while others had been hoping that it would be April 2020. The Scottish Ministers appear to have split the difference and given RSLs a period of around 9 months to prepare for becoming Scottish public authorities.

RSLs have been, following a number of decisions of the Scottish Information Commissioner (which have never been appealed to the Court of Session), Scottish public authorities for the purposes of the Environmental Information (Scotland) Regulations 2004 for a number of years. There is, however, some debate about whether they remain so, following some changes to the regulatory landscape pertaining to RSLs. It has not yet, to my knowledge, been tested whether they still are Scottish public authorities for the purposes of the Environmental Information (Scotland) Regulations 2004. Whether the changes to the regulatory landscape of RSLs has had the effect of them no longer being Scottish public authorities, for the purposes of the Environmental Information (Scotland) Regulations 2004, is somewhat immaterial; designation as a Scottish public authority for the purposes of FOISA also means that they will be Scottish public authorities for the purposes of the Environmental Information (Scotland) Regulations 2004.

It should be noted that the draft order has been drafted in such a way so as to make RSLs Scottish public authorities for limited purposes only. They will be Scottish public authorities in respect of the following functions:

  1. providing housing accommodation and related services and includes anything done, or required to be done, in relation to:- (a) the prevention and alleviation of homelessness; (b) the management of housing accommodation (limited to the management of housing accommodation for which a registered social landlord has, under the Housing (Scotland) Act 2001, granted a Scottish secure tenancy as defined in section 11 or a short Scottish secure tenancy as defined in section 34 of that Act); (c) the provision and management of sites for gypsies and travellers, whatever their race or origin; and
  2. the supply of information to the Scottish Housing Regulator by a registered social landlord or a connected body in relation to its financial well-being and standards of governance.

A register of social landlords can be found on the website for the Scottish Housing Regulator.

Alistair Sloan

We are able to provide advice and assistance to public authorities and requesters in connection with matters concerning Freedom of Information laws; if you would like advice and assistance in connection with these matters, or any other information law matter, please contact Alistair Sloan on 0141 299 0880 or by E-mail. You can also follow our dedicated Information Law Twitter account.

Registered Social Landlords and FOI

Yesterday, the Scottish Government began a consultation on legislation to formally designate Registered Social Landlords (RSLs) as Scottish public authorities for the purposes of the Freedom of Information (Scotland) Act 2002 (“FOISA”).  The draft Order being consulted on proposes a commencement date of 1st April 2019.

This is not an unexpected development in the field of information law.  In December 2016 the Scottish Government consulted on the principle of designating RSLs as public authorities for the purposes of FOISA.  It has been widely anticipated that RSLs would be designated as a public authority for the purposes of FOISA.

A designation as a public authority for the purposes of FOISA will have ramifications for RSLs beyond the obvious need to comply with FOISA and being under the regulatory oversight of the Scottish Information Commissioner.  It will also have implications for RSLs in respect of how they implement the General Data Protection Regulation (“GDPR”), which becomes applicable from 25th May 2018.

There are a number of aspects of the GDPR which are directed towards public bodies.  The Data Protection Bill currently before the UK Parliament defines what a public body is for the purposes of the GDPR.  Clause 6 of the Bill provides that a body which is designated as a Scottish public authority for the purposes of the FOISA is a public body.  This will mean that RSLs will have to appoint a Data Protection Officer; even although many of them would not have had to before this decision was taken by the Scottish Government.

It also has implications for the grounds upon which they can legitimately process personal data.  Processing of personal data for the purpose of pursuing a legitimate interest of the controller is permissible under the GDPR.  However, the GDPR goes on to provide that public bodies cannot rely upon legitimate interest as a ground of processing in performance of their tasks.  Therefore, any RSL that has been preparing for the GDPR on the basis that they will be able to process personal data on the legitimate interests ground will have to re-evaluate its processing of personal data ahead of its designation as a public authority for the purposes of FOISA.

It is worthy of note, simply for interest, that the Data Protection Bill proposes giving the Secretary of State the power to make regulations which state that a public body is not in fact a public body for the purposes of the GDPR.  However, there has been no indication that the Secretary of State intends on making use of this power or how the power is intended to be used; therefore, it is probably advisable not to work on the basis that a RSLs will be declared not to be public bodies for the purposes of the GDPR.

Another possible implication for RSLs is in relation to the Environmental Information (Scotland) Regulations 2004 (“the EIRs”).  The Scottish Information Commissioner has already previously decided that RSLs are public authorities for the purpose of these regulations, which govern access to environmental information.  The Housing (Amendment) (Scotland) Bill may have implications for the basis upon which the Commissioner concluded that RSLs were a public authority for the purposes of the EIRs.  If it does, there may be a gap where RSLs are not public authorities for the purposes of EIRs.  Once they become designated as a public authority for the purposes of FOISA, they will automatically become a public authority for the purposes of the EIRs as well.

Alistair Sloan

If you would like advice or assistance in respect of a freedom of information or data protection matter then contact Alistair Sloan on 0345 450 0123.  Alternatively, you can send him an E-mail.