The Scottish Government has opened its long-awaited consultation on designating the private and third sector providers of care home and care at home services as Scottish public authorities for the purposes of the Freedom of Information (Scotland) Act 2002 (“FOISA”) and the Environmental Information (Scotland) Regulations 2004 (“Scottish EIRs”). The consultation opened on 5 January 2026 and will run until 30 March 2026.

The discussion on whether care homes operated by private and third sector organisations should be covered by freedom of information legislation has been going on for some years now. The question came to prominence in 2020 during the Covid-19 pandemic; however, it would be fair to say that it was going on even before the pandemic.

Scottish Ministers have specific powers under section 5 of FOISA to designate, by order, certain persons as Scottish public authorities for the purposes of FOISA (and consequently the Scottish EIRs as well). Three orders have been made under section 5 of FOISA by the Scottish Ministers, the most recent being in 2019 which designated Registered Social Landlords as Scottish public authorities.

In Scotland both care home services and care at home services require to be registered with Social Care and Social Work Improvement Scotland (“the Care Inspectorate”) who is responsible for registering and regulating care services in Scotland. As the consultation notes, there are existing statutory definitions of care home services and care at home services in schedule 12 to the Public Services Reform (Scotland) Act 2010. Under the 2010 Act, it is the individual service rather than the provider which is registered with the Care Inspectorate. For example, if a single company operates 10 separate care homes in Scotland, each care home has to be separately registered with the Care Inspectorate as a service.

It doesn’t seem clear from the consultation document whether the Scottish Ministers are intending on designating individual services as Scottish public authorities or the provider themselves. The ministerial forward states that “the Scottish Government has been clear that it sees a case in principle that these services may be considered to be public functions, and that statutory FOI obligations should therefore be extended to private and third sector providers of such services.” (my emphasis) However, the consultation then goes on to refer to the statutory definitions in the 2010 Act, and the consultation question asks about services (my emphasis) which are operated by private and third sector organisations rather than the providers of such services. Designation of the individual services rather than the provider of the services may not be within the Scottish Minister’s powers; section 5 of FOISA confers a power to designate a person or persons exercising functions of a public nature (section 5(2)(a)) rather than designation of services of a public nature. Some clarity will be needed around this if designation is to go ahead.

There is to be a general election to the Scottish Parliament on 7 May 2026 and so it will be for whoever forms the next administration in Edinburgh to consider the results of the consultation and make a decision on whether (and to what extent) to exercise the powers under section 5 of FOISA in relation to care homes and care at home services. It will therefore be some time before we know what the results of the consultation are and what decision the Scottish Government will take on the question. If the eventual decision is to designate, it is unlikely that designation will take place before 2027 allowing for the election period and any period allowed for designees to prepare for becoming a Scottish public authority after the order has been made (when the designation power in section 5 has been used in the past, there has been a period of around six months between the order being made and it coming into force).

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}