The Scottish Information Commissioner - It's Public Knowledge
Tweet this page:
Text Size Icon

- Text Size Up | Down

Duty to Advise150pxlCovid-19 and FOI: Your questions answered

 

Covid-19 FOI Update

Below we provide answers to questions that people requesting information may have about the impact the coronavirus Covid-19 pandemic and the Scottish Parliament's Coronavirus Act (as amended by the Coronavirus (Scotland) (No.2) Act) has on FOI in Scotland.


Why has the FOI Act been changed?

The Scottish Parliament has introduced temporary changes to support Scottish public authorities when responding to the coronavirus Covid-19 pandemic. The Explanatory Notes which accompanied the changes set out that they have been made to ensure that essential public services can continue to be provided at a time when organisations may face challenges as a result of staff illness, self-isolation, or the re-deployment of staff, and so they can focus on work which responds to the outbreak and protects the health of those living in Scotland.


Are the changes permanent?

The changes made are not permanent. They came into force on 7 April 2020 (with additional changes in effect from 27 May 2020) and are due to expire on 30 September 2020 (although Ministers may extend this if necessary).

Return to top >

Can I still request information from public authorities, and how do I go about it?

Yes. FOI requests can still be made as normal in the current situation. The changes to the law only affect the timescales within which public authorities must respond. There's more information on making a request in general on our Your Rights pages.

When making a request for information, you may wish to consider the impact of coronavirus Covid-19 on the authority you are contacting. Your information rights remain vitally important, and the FOI principles of openness, transparency and accountability will play an essential role in supporting public trust at this difficult time. If you're planning a request, it's worth bearing in mind that there may be things you can do to reduce the impact of a request on an organisation while still accessing the information you need.

For example, when drafting your request, think about whether there is any way the request might be narrowed to reduce its impact and speed up your response. Our Tips for Requesters page has lots of advice that can help with this.

And remember, FOI law also requires that public bodies publish lots of information about their work - including information on the decisions they make, the services they provide, their policies and procedures and the money they spend. It's always a good idea to take a look at their website before making a request - the information you need might just be a few clicks away.

And finally, if you are making a request at this time, we'd suggest that you send it to an authority by email, using its FOI email address, rather than by post. Remember that authorities may have closed their premises or will have a reduced workforce, so an email request to the FOI address published on the authority's website will ensure that your request gets to the right person for a response as quickly as possible.

For more information on using your FOI rights, visit www.itspublicknowlege.info/yourrights.

Return to top >

How long should it take to receive a response?

Public authorities have up to 20 working days to respond to requests. However, they are still required to respond "promptly" to the requests for information they receive, as well as to requests for review. The temporary 20-working day timescale for responses is a maximum timescale only.

If an organisation has been significantly affected by the coronavirus Covid-19 pandemic, however, your response may take longer than normal. You can ask an authority to review its handling of your request even if the 20 working days maximum timescale hasn't passed if you think the authority hasn't responded "promptly", even taking into account the effects the coronavirus may have had on the authority. However, before doing this, you might find it helpful to contact the authority to ask if they know when a response is likely to be issued as requesting a review may lead to further delay.

Return to top >

I made a request before the law changed but I have not yet received a response – how will it be affected?

The temporary changes to FOI law made by the Coronavirus (Scotland) Act will apply to your request if it was received on or before the 26 May and has not yet been answered. This means the maximum timescale the authority you requested information (or a review) from has to respond is 20 working days from the date they received your request.

Public authorities are still required to respond "promptly" to the requests for information they receive however, as well as to requests for review. The 20-working day timescale for responses is a maximum timescale only.

Return to top >

I made a request which was responded to between 7 April and 26 May 2020 and took longer than 20 days – can I complain about the delay?

The Commissioner will be issuing guidance shortly on the impact of the Coronavirus (Scotland) (No.2) Act on requests and reviews responded to between 7 April 2020 (when the first Coronavirus Act came in to force) and 26 May 2020 (the day before that Act was amended).

Return to top >

I requested information from a public authority and haven't received a response. What can I do?

The public authority has a duty to respond to you promptly, and within a maximum timescale of 20 working days. If you are dissatisfied with the way a public authority has dealt with your request you can ask it to review its failure to respond; if you still do not receive a response (or are unhappy with any response you receive), you can then make an appeal to the Scottish Information Commissioner. The Commissioner can then investigate and determine whether the authority has failed to comply with FOI law. The factors the Commissioner will consider are set out in his guidance.

If your appeal to the Commissioner is based on the fact that a response to a review was not "prompt", despite a response being given within 20 working days, and does not take into account any of the effects the coronavirus may have had on the authority, the Commissioner may need to consider whether your appeal is frivolous before carrying out an investigation.

Return to top >

What if an authority tells me they are too busy to respond?

The public authority has a duty to respond to you promptly, and within a temporary maximum timescale of 20 working days. If you are not happy for any reason with the way the authority has dealt with your request you can ask them to review their actions. The authority will have a further 20 working days to respond (although they should again do so promptly).

If you are still dissatisfied after they have reviewed their decision you can then make an appeal to the Scottish Information Commissioner. The Commissioner will investigate your case and determine whether you should receive the information requested in full or in part, or whether the authority's decision should be upheld.

If your appeal to the Commissioner is based on the fact that a response to a review was not "prompt", despite a response being given within 20 working days and does not take into account any of the effects the coronavirus may have had on the authority, the Commissioner may need to consider whether your appeal is frivolous before carrying out an investigation.

Return to top >

Is the Commissioner likely to find that an authority which responds after 20 working days has nevertheless complied with the FOI Act?

The Coronavirus (Scotland) Act 2020 (as amended by the Coronavirus (Scotland) (No.2) Act gives the Commissioner the ability to decide that an authority has complied with the FOI Act even if it fails to meet the maximum 20-working-day deadline, if the failure was due to the effect of coronavirus, and if the delay was reasonable.

An authority's ability to respond to a request may be affected in a range of ways by the Covid-19 pandemic – including staff absence, limited access to systems and increased workload. These will be considered by the Commissioner when deciding whether an authority which has failed to respond within 20 working days has nevertheless complied with the FOI Act. The Commissioner has produced guidance on this for public authorities.

As set out in the guidance, if the Commissioner found that a failure to respond within 20 working days was not due to the effect of the Coronavirus pandemic (or if a failure was due to the effect of the pandemic, but the delay was not reasonable) he may conclude that the organisation has failed to comply with its FOI duties.

Return to top >

Are all requests for information affected by the change in the law?

No. The changes only apply to the FOI Act in Scotland.

If you are asking for environmental information, the timescale changes introduced by the Coronavirus (Scotland) Act 2020 (as amended by the Coronavirus (Scotland) (No.2) Act) won't apply. This is because the law which applies to requests for environmental information, the Environmental Information (Scotland) Regulations 2004, is not affected by the Coronavirus (Scotland) Act.

The changes also do not affect requests for your personal information, which are dealt with under UK law and regulated by the UK Information Commissioner's Office.

Return to top >

Can I choose which legislation my requests can be under?

No. If the information you want is about the environment the authority must respond to your request under Environmental Information (Scotland) Regulations 2004 (EIRs).

If the information you request is not defined as environmental, it must be dealt with under the Freedom of Information (Scotland) Act 2002, which is affected by the temporary changes of the Coronavirus (Scotland) Act 2020.

Return to top >


Further information

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

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

Law IconCovid-19 emergency changes to FOI law in Scotland >>>

News IconLatest news on FOI during 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.


Back to Top