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Public Authority IconCovid-19: Guidance for authorities

 

Covid-19 FOI Update

The Scottish Parliament passed emergency legislation in April 2020 in response to the coronavirus Covid-19 pandemic. The initial legislation has now been amended, with the changes taking effect from 27 May 2020.

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

The Coronavirus Act at first increased the maximum timescales within which Scottish public authorities must respond to FOI requests – including requests for information and requests for review – from 20 to 60 working days. However, this change was later removed (by the Coronavirus (Scotland) (No.2) Act (the Coronavirus No.2 Act)).

FOI timescales

Part 2 of Schedule 6 to the amended Coronavirus (Scotland) Act now makes NO CHANGE to the maximum timescales within which Scottish public authorities must respond to requests for information and requests for review under FOI law. Therefore, these requests must be responded to promptly (i.e. without delay), and in no more than 20 working days.

The 20-working day limit applies to requests including those made after 7 April (when the Coronavirus Act came in to force) which were still awaiting a response 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.

Considering the impact of Covid-19 on authorities

The amended Coronavirus Act allows the Commissioner to decide that a Scottish public authority has not failed to comply with FOI duties by not responding to a request within 20 working days, if he is satisfied that the failure to respond on time was:

  1. 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 (7 April to 26 May inclusive), AND
  2. Reasonable in the circumstances, with primary consideration given to the public interest in the authority responding promptly to requests.

Therefore, authorities should ensure they record any relevant factors relating to the coronavirus that have directly impacted on their ability to respond promptly to particular requests. There is more information about this in the Commissioner's guidance (see below).

Irrespective of the maximum timescales, authorities are reminded that they still have a duty to respond promptly to the requests for information and requests for review they receive. Where you are able to respond to a request without delay, you should continue to do so.

It is also important to note that the changes to FOI law, including the latest amendments, do not apply to requests that fall under the Environmental Information (Scotland) Regulations 2004 (EIRs). Therefore, authorities must ensure they correctly identify when a request is for environmental information, because if an appeal is made to the Commissioner because an authority has failed to respond on time to this type of request, then the Commissioner would have no option but to find that the authority had failed to comply with the EIRs.

Further detail, resources and guidance

To assist public authorities in responding to requests for information under the temporary changes introduced by the Coronavirus Act (as amended by the Coronavirus No.2 Act), we have produced the following guidance:

PDF iconThe Coronavirus (Scotland) Act 2020: Determining the effects of coronavirus on an authority's ability to respond to requests (updated 28 May 2020)

Duty to Advise150pxlCovid 19 and FOI: Public authority questions answered >>>


Other FOI provisions in the amended Coronavirus Act are:

  • Authorities may issue notices relevant to FOI electronically. This allows the Commissioner, for the first time, to issue decisions by email rather than having to post hard copies. This is currently in force for the lifespan of the Coronavirus Act, but we understand that it may subsequently be made permanent.
  • Scottish Ministers must report specified information to Parliament, every two months during the lifespan of the Coronavirus Act, about their responses to requests for information.

The Coronavirus (Scotland) Act is currently due to expire on 30 September 2020, although it can be extended if necessary and some provisions may be terminated early if appropriate.

Proactive Publication

As well as responding to requests, FOI law requires that public bodies publish information about their work. This 'duty to publish' is perhaps more important than ever, given the strong public interest in how public institutions respond to the crisis.

Publishing and promoting as much information as possible in this way can help reduce the number of requests for information your authority receives - particularly useful at times where staffing or resource issues may be presenting challenges.

Many authorities have already created prominent dedicated Coronavirus pages on their websites, in response to the heightened public interest. We encourage all authorities to use this opportunity to ensure the information in these pages reflects the requirements of the FOI Act's publication duty.

Examples could include:

  • information on the impact of Covid-19 on the operation of the authority or the services it provides
  • minutes of meetings and records of decisions made relating to the pandemic
  • information about significant spending commitments made relating to the pandemic
  • relevant correspondence or communications
  • any datasets that are collected relating to the pandemic

The Commissioner has created a page of proactively published information relating to his own office and the pandemic and this will be added to as further information becomes available.


Further information

Duty to Advise150pxlCovid-19 and FOI: Public authority questions answered >>>

Hub IconCovid-19 and FOI: Information Hub >>> 

Law IconThe Covid-19 emergency changes to FOI law in Scotland >>>

Duty to Respond150pxlMaking an information request during the Covid-19 pandemic >>>

News IconLatest news on FOI during the Covid-19 pandemic >>>

Duty to Publish 150pxlInformation we publish relating to the Covid-19 pandemic >>>

 

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 28 May 2020.


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