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Public Authority IconCovid-19 and FOI: 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 was later amended, and those changes came into effect on 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 – 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 2020 (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.

Please note – the 20-working day limit applies to requests that had been received but not responded to before 27 May 2020 (when the amendments in the Coronavirus No.2 Act took effect) as well as requests received on or after 27 May.

Where a request for information or review was responded to in the period 7 April to 26 May 2020, this will be judged by the Commissioner in accordance with the 60 working day limit that was in force at the time. Please see the separate guidance document below for more information on how the law applies to these cases and how the Commissioner will consider any appeals relating to them.

Considering the impact of Covid-19 on authorities

The Coronavirus Act as amended allows the Commissioner to decide that a Scottish public authority has not failed to comply with FOI duties by failing to respond to a request within the relevant maximum timescale, 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 (if applicable) 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 in most cases 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 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.

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.

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:

The Coronavirus (Scotland) Act 2020: Determining the effects of coronavirus on an authority's ability to respond to requests (updated 05 June 2020)

The Coronavirus (Scotland) Act 2020: Determining the effects of coronavirus on requests responded to between 7 April and 26 May 2020

Duty to Advise150pxl Covid 19 and FOI: Public authority questions answered >>>


Other FOI provisions in the amended Coronavirus Act

  • 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 will 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 bodies 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 when 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

You can view the Commissioner's own page of proactively published information relating to the pandemic which will be added to as further information becomes available.


Further information

Duty to Advise150pxl Covid-19 and FOI: Public authority questions answered >>>

Hub Icon Covid-19 and FOI: Information hub >>>

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

Duty to Respond150pxl Making an information request during the Covid-19 pandemic >>>

News Icon Latest news on FOI during the Covid-19 pandemic >>>

Duty to Publish 150pxl Information 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 5 June 2020.


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