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Law IconCovid-19 and FOI: Emergency Legislation

 

Covid-19 FOI UpdateThe Scottish Parliament has amended the emergency legislation passed in response to the coronavirus Covid-19 pandemic. The changes came in to effect on Wednesday 27 May 2020.

The Coronavirus (Scotland) Act 2020 (the Coronavirus Act) made temporary amendments to a range of legislation, including the Freedom of Information (Scotland) Act 2002 (the FOI Act).

The Coronavirus Act initially increased the maximum timescales within which Scottish public authorities must respond to FOI requests, and requests for review, from 20 to 60 working days. However, those changes were later removed by the Coronavirus (Scotland) (No.2) Act 2020 (the Coronavirus No.2 Act).

Current FOI Provisions of the Coronavirus (Scotland) Act 2020

Following the changes made in May 2020, Part 2 of Schedule 6 to the Coronavirus Act now makes only limited amendments to the FOI Act. The changes now mean that:

  • All requests for information and requests for review must still be responded to promptly, and in no more than 20 working days.
    This includes those requests made after 7 April – the day the original Coronavirus Act came into force – which had not received a response when the amendments in the Coronavirus No.2 Act took effect on 27 May. The Commissioner will issue separate guidance shortly on the impact of Coronavirus (Scotland) (No.2) Act on requests for information or review which were responded to between 7 April 2020 and 26 May 2020 (inclusive).    
  • The Scottish Information Commissioner may decide that a Scottish public authority has not failed to comply with the FOI Act by failing to respond to a request within 20 working days, if he is satisfied that the failure to respond on time was:
    a) due to either the effect of the coronavirus on that authority or the authority acting under the 60-working-day timescale when it was in force; and
    b) reasonable in all the circumstances, the primary consideration being the public interest in the authority responding promptly to requests.
  • Scottish Ministers must report specified information to Parliament, every 2 months during the lifespan of the Coronavirus Act, about their responses to requests for information.
  • Scottish public authorities can issue notices electronically, allowing the Commissioner, for the first time, to issue decisions by email rather than by posting hard copies.

It is important to note that the provisions in the Coronavirus Act are temporary, and are due to expire on 30 September 2020 – although they can be extended if necessary, and specific provisions can also be terminated early.

The Environmental Information (Scotland) Regulations 2004

The FOI provisions in the Coronavirus Act apply only to the Freedom of Information (Scotland) Act 2002. They do not apply to requests for environmental information which fall under the Environmental Information (Scotland) Regulations 2004 (the EIRs).

If an appeal is made to the Commissioner because a public authority has failed to respond on time to a request for environmental information, then the Commissioner would have no option but to find that the authority had failed to comply with the EIRs.

However, in deciding on appeals regarding both FOI and EIR requests, the Commissioner will be sympathetic to the specific effects that coronavirus Covid-19 has had on the relevant authority. Any unavoidable reasons for delay would be recognised in decision notices, as long as the authority provided clear evidence of those reasons during the investigation.


Further Information and Guidance

Our Covid-19 Guidance for Authorities page has more information on the implications for public authorities of the changes made to FOI by the Coronavirus Act (including details of how the Commissioner will decide whether an authority has complied with the law under the new provisions set out above).

Our Covid-19 Requesting Information page has guidance for the public on how best to use your rights to access information during the pandemic.


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We will continue to update the information on these pages as the situation changes and new information becomes available.

Our office is currently closed but if you have an urgent query please contact us.

This page was last updated on 27 May 2020.


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