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Covid-19 FOI Update

Changes to FOI timescales repealed by new Coronavirus Bill

21 May 2020

This week the Scottish Parliament has passed further emergency legislation which will significantly affect the changes made to freedom of information law in Scotland earlier this year in response to the Covid-19 pandemic.

Maximum timescales for response to requests

In particular, the Coronavirus (Scotland) (No.2) Bill removes the extension of the maximum timescale within which Scottish public authorities must respond to requests for information and requests for review. This means the original 20-working-day limit is restored for all requests.

However, the new law retains (and amends) the ability of the Commissioner to decide, in cases which come to him on appeal, that a Scottish public authority did not fail to comply with their duties under the Freedom of Information (Scotland) Act 2002 by failing to respond to a request promptly and within 20 working days. That finding can now be made if:

  • The failure to respond on time was due to either the effect of the coronavirus on the authority or the authority acting under the 60-working-day timescale during the time that it was in force, AND
  • The failure to respond on time was reasonable in deciding on this, the Commissioner’s primary consideration must be the public interest in authorities complying promptly with information requests.

Other FOI-related provisions

The ability for public authorities – including the Commissioner – to issue notices electronically is also retained for as long as the emergency legislation is in force. (We understand this provision is likely to be retained permanently).

Other changes made in relation to freedom of information are:

  • Scottish Ministers no longer have the power to issue directions extending the maximum timescale for certain authorities in certain circumstances
  • Ministers must report to Parliament, every 2 months during the pandemic, on their responses to requests for information
  • The regulations varying the maximum timescale for grant-aided and independent special schools – to take account of when those schools are closed – are restored

It is important to note once again that the FOI provisions of the emergency legislation, including these latest changes, do not apply to requests that fall under the Environmental Information (Scotland) Regulations 2004. Therefore, if an appeal is made to the Commissioner about an authority’s failure to respond on time to a request for environmental information, he would have no option but to find that the authority did fail to comply.

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

We will publish updated guidance on the implications of the amended Coronavirus (Scotland) Act, reflecting the changes made by the new law, on this website in due course.

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