The Scottish Information Commissioner - It's Public Knowledge
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Timescales under the Act

Should I advise the applicant when the 20 working day period is due to end?

We have received a number of enquiries from applicants asking about steps they can take where a response has not been received within 20 working days. This has highlighted the fact that there may be disagreement between the applicant and the authority as to when the 20 working day period stops and starts.

While the Act specifies a 20 working day period it also allows for postal time (see s74 of FOIAS). Some authorities are informing applicants of the date of receipt in an acknowledgement letter (thereby indicating when the clock started ticking). It might be helpful for authorities also to state when the 20 working days will end. For example:

"A response to your request for information will be sent to you promptly; and in any event not later than [insert date]. Please allow postal time."

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What is meant by "working day"?

Section 73 of FOISA defines "working day" as any day other than a Saturday, a Sunday, Christmas Day or a day which, under the Banking and Financial Dealings Act 1971, is a bank holiday in Scotland.

Bank holidays for Scotland are as follows:

  • New Year's Day (unless New Year's Day happens on a Sunday, in which case 3rd January is treated as a bank holiday)
  • 2nd January (unless 2nd January happens on a Sunday, in which case 3rd January is treated as a bank holiday)
  • Good Friday
  • The first Monday in May
  • The first Monday in August
  • 30th November, if it is not a Saturday or Sunday, or if it is a Saturday or Sunday, the first Monday following that day.
  • Christmas Day (unless Christmas Day happens on a Sunday, in which case 26th December is treated as a bank holiday).

In addition, special days can be appointed under the 1971 Act as bank holidays (either additional or in place of bank holidays which fall on a Saturday or Sunday) subject to Royal Proclamation each year. These include Boxing Day, which has been an additional bank holiday in Scotland since 1974 and the last Monday in May which has been a bank holiday since 1978.

The 1971 Act also enables the Queen to appoint substitute bank holidays in any one year by Royal Proclamation. Substitute days are customarily appointed for all UK bank holidays which fall on a Saturday or Sunday. Where any of the dates fall on a Sunday, the Act substitutes the following Monday for that date. If any fall on a Saturday (or if Boxing Day falls on a Saturday or Sunday), the Royal Proclamation includes substitute days for these days.
The statutory bank holidays for Scotland are set out in a table on the Scottish Government's website, which can be found at the link below:

http://www.scotland.gov.uk/Topics/People/bank-holidays

It should be noted that local holidays outwith the bank holidays are not considered to be official bank holidays and should be calculated as working days for the purpose of FOISA.

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I know I have a maximum of 20 working days to respond to an information request. Does this mean that the applicant has to receive the information within 20 working days or that I have to send it out within 20 working days?

FOISA simply states that a public authority must comply promptly with a request for information and in any event not later then the 20th working day from receipt of the request. Public authorities should respond as quickly as possible, but in any event they must send out the response within 20 working days. It is not necessary for the applicant to receive the response within 20 working days.

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Can I send out a holding letter within 20 working days saying that I'll make the information available within a further 20 working days?

No. Under FOISA all requests for information must be responded to within 20 working days, either by releasing the information requested, issuing a refusal notice setting out which exemptions apply to the information and why, or by issuing a formal notice that the public authority doesn't hold the information.

Under the EIRs, the timescale can be extended to 40 working days in certain limited circumstances, but this only applies to requests for environmental information where the volume and complexity of the information requested makes it impracticable for the authority to comply with or refuse the request within the 20 working day time limit.

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What happens to the 20 working day period if I need more information from the applicant to let me deal with the request?

If you need to ask the applicant for further information to help you identify and locate the information they want, the 20 working days "clock" does not start counting down until you have received their clarification. The deadline for compliance will be the twentieth working day after you receive additional information from the applicant.

Public authorities must not misuse this by delaying asking the applicant for further information in order to give themselves more time to reply when the additional information isn't really needed.

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What happens to the 20 working days if I have to send a fees notice to the applicant?

When the authority sends a fees notice to the applicant, the "clock" stops in relation to the 20 working days time limit. The clock restarts the day after the authority receives payment (section 10(3)). So, if a fees notice was issued 15 working days after the request was received, you have 5 working days to release the information, starting the day after payment has been received.

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What if the applicant pays by cheque?

An authority should apply its procedures consistently, so if currently information, products or services are provided without waiting for a cheque to clear then the same procedure should be followed for FOI requests. If an authority's current practice is to delay providing services etc until the cheque has cleared, then they can use this practice for dealing with freedom of information and environmental information requests. However, in these circumstances, authorities must not delay cashing a cheque.

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What is the maximum time allowed for the Commissioner to refer a case to the Court of Session or for an applicant or public authority to appeal against the decision of the Commissioner?

Unfortunately, there are no time limits set down under the Act for the Commissioner to refer cases to the Court of Session.  However, members of the public and public authorities will have 42 days to appeal against the decision of the Commissioner to the Court of Session from the issue of a decision notice.

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