Covid-19 and FOI: Emergency Legislation

 

Covid-19 FOI Update

In April 2020 the Scottish Parliament passed emergency legislation in response to the coronavirus pandemic. 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 temporarily increased the maximum timescales allowed for Scottish public authorities must respond to FOI requests from 20 to 60 working days. This change affected requests made for a short period between 7 April and 26 May (after which time the change was removed).

The Coronavirus Act also allowed the Commissioner to consider the impact of coronavirus when making decisions regarding compliance with FOI timescales. This provision is now being phased out from 1 October 2021.

Current FOI Provisions of the Coronavirus (Scotland) Act 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 be responded to promptly, and in no more than 20 working days.
    Following the removal of the temporary timescale extension, requests must be responded to promptly, and within 20 working days (request responses issued in the period between 7 April and 26 May 2020 will be judged by the Commissioner in accordance with the 60 working day limit that was in force at that time).
  • If a requests was made on or before 30 September 2021 the Scottish Information Commissioner may decide that a Scottish public authority has not failed to comply with the FOI Act by failing to respond 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 2020 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.
    This discretion does not apply in relation to requests made on or after 1 October 2021.
  • 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 to issue decisions by email rather than having to post hard copies.

It is important to note that the remaining provisions in the Coronavirus Act are temporary and currently in force until 31 March 2022 - although specific provisions may still be terminated early if appropriate. See section 12 of the Coronavirus Act for details.

The Coronavirus legislation and changes to FOI

There are three parts to the emergency legislation passed by the Scottish Parliament, each of which made changes to freedom of information law in Scotland:

  1. The Coronavirus (Scotland) Act 2020 (in effect from 7 April 2020):

    a) Extended the maximum timescales within which Scottish public authorities were required to respond to requests for information and requests for review made under the Freedom of Information (Scotland) Act 2002 (the FOI Act), from 20 working days to 60 working days in most cases.

    b) Gave Scottish Ministers the power - by regulations, subject to consultation with the Commissioner - to extend the maximum timescales by up to 40 additional working days for certain authorities (excluding the Ministers) in certain circumstances.

    c) Allowed the Commissioner to find in his decisions that a Scottish public authority had not failed to comply with FOI duties by failing to respond within the maximum timescales, if the failure was reasonable and due to the effect of the coronavirus on that authority.

    d) Enabled Scottish public authorities, including the Commissioner, to issue formal FOI notices solely electronically, without the need to post hard copies.
  2. The Coronavirus (Scotland) (No.2) Act 2020 (in effect from 27 May 2020):

    a) Removed the extension to the maximum timescales for responding to requests under the FOI Act - restoring the original 20 working day limit for most cases.

    b) Withdrew the power of Scottish Ministers to extend the maximum timescales.

    c) Amended the considerations to be made by the Commissioner in deciding whether an authority failed to comply in relation to timescales - to include whether the authority was operating under the extended timescales when they were in force, and to make the public interest the primary consideration.

    d) Retained the ability to issue formal notices solely electronically.

    e) Required Scottish Ministers to report to Parliament, every 2 months during the pandemic, on their responses to requests made under the FOI Act.
  3. The Coronavirus (Extension and Expiry) (Scotland) Act 2021 (in effect from 1 October 2021):

    a) Removed the Commissioner's ability to find that an authority had complied with FOI despite failing to respond within the maximum timescales, except for requests made on or before 30 September 2021.

    b) Retained the ability to issues notices electronically, and the requirement for Ministers to report on their responses to FOI requests.

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 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.

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We will continue to update the information on these pages as the situation changes and new information becomes available.

Although our office premises are currently closed, most of our services continue to be available - please see our contact us page for details

This page was last updated on 23 September 2021.


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