Covid-19 and FOI: Emergency Legislation

 

Covid-19 FOI Update

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). The new changes came into effect on 27 May 2020.

Current FOI Provisions of the Coronavirus (Scotland) Act 2020

Following the changes made in May 2020, Part 2 of Schedule 6 to the Coronavirus Act now makes only limited amendments to the FOI Act. The changes now mean that:

  • Requests for information and requests for review must still be responded to promptly, and in no more than 20 working days.
    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 to requests received on or after 27 May.
    Where a response to a request was issued 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 that time.
  • The Scottish Information Commissioner may decide that a Scottish public authority has not failed to comply with the FOI Act by failing to respond to a request within the relevant maximum timescale, if he is satisfied that the failure to respond on time was:
    a) 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
    b) reasonable in all the circumstances, the primary consideration in most cases being the public interest in the authority responding promptly to requests.
  • 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.
  • Scottish public authorities can issue notices relevant to FOI electronically, allowing the Commissioner, for the first time, to issue decisions by email rather than having to post hard copies.

It is important to note that the provisions in the Coronavirus Act are temporary. They were initially due to expire on 30 September 2020, though in September 2020 this was extended to 31 March 2021 (by The Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020). They can be extended further if necessary, and specific provisions may be terminated early if appropriate.

Scottish Government reports on the use of emergency powers

The Scottish Government is required to report to Parliament every two months on the use of the emergency powers contained within the Coronavirus Acts. This includes the legal provisions on Freedom of Information and Scottish Ministers' responses to requests for information under the FOI Act. The reports are available via the links to the Scottish Government website below:

The Environmental Information (Scotland) Regulations 2004

The FOI provisions in the Coronavirus Act apply only to the Freedom of Information (Scotland) Act 2002. They do not apply to requests for environmental information which fall under the Environmental Information (Scotland) Regulations 2004 (the EIRs).

If an appeal is made to the Commissioner because a public authority has failed to respond on time to a request for environmental information, 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.

Further Information and Guidance

Our Covid-19 Guidance for Authorities page has more information on the implications for public authorities of the changes made to FOI by the Coronavirus Act (including details of how the Commissioner will decide whether an authority has complied with the law under the new provisions set out above).

Our Covid-19 Requesting Information page has guidance for the public on how best to use your rights to access information during the pandemic.

 Covid-19 and FOI: Information hub >>>

 Making an information request during the Covid-19 pandemic >>>

 Guidance for public authorities on FOI during the Covid-19 pandemic >>>

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 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 28 September 2020.


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