Covid-19 and FOI: Public authority questions answered
Below are answers to questions that Scottish public authorities may have about the impact of the coronavirus Covid-19 pandemic and the recent emergency changes to FOI law in Scotland (made by the Coronavirus (Scotland) Act and Coronavirus (Scotland) (No.2) Act).
As a result of the changes to the law made by the Coronavirus (Scotland) (No.2) Act, the maximum timescales within which Scottish public authorities must respond to requests for information and requests for review under the Freedom of Information (Scotland) Act law has reverted to 20 working days. This is a maximum timescale however, and the duty to respond promptly (i.e. without delay) remains.
Authorities should bear in mind that the timely disclosure of information will play a key role in ensuring that public trust can be maintained and strengthened during the coronavirus Covid-19 pandemic, and should therefore be responding promptly at all times.
The 20 working day limit applies to requests for information and requests for review that had been received but had not been responded to before 27 May 2020, 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 Commissioner's guidance regarding requests responded to between 7 April and 26 May 2020 for details.
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A request which was received while the 60 working day limit was in force (7 April to 26 May 2020 inclusive) but which had not been responded to by 27 May 2020 (when the amendments in the Coronavirus (Scotland) (No.2) Act took effect) must be responded to promptly, and no more than 20 working days from receipt of the request. The same applies to requests for review.
This is because the Coronavirus (Scotland) (No.2) Act has the effect of restoring the 20 working day timescale for all requests from 27 May 2020. Read the Commissioner's guidance for details on how he will consider any appeals made in relation to late responses as a result of the impact of the pandemic.
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Where a request for information or review was responded to in the period 7 April to 26 May 2020 inclusive, this will be judged by the Commissioner in accordance with the 60 working day limit that was in force at the time. The requirement to respond promptly still applied. Please see the Commissioner's separate guidance document on requests responded to during this period for more information on how the law applies to these cases and how the Commissioner will consider any appeals relating to them.
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Public authorities should respond as soon as possible, and without delay. Three key factors to consider in each case include:
- the
resources the authority has available to deal with requests
- the time required to identify, locate, retrieve and present the information
- the time required to be sure the information gathered is complete
An authority's ability to respond to a request may be affected in a range of ways by the Covid-19 pandemic - including staff absence, limited access to systems and increased workload. Where the Commissioner is asked to determine if a request has been responded to promptly during this time, authorities will be required to provide evidence as to the effects of the pandemic on its ability to respond promptly to the specific request.
The Commissioner has produced separate guidance documents for requests responded to in the period 7 April, to 26 May 2020, and requests responded to at other times. These documents can be downloaded from the Covid-19 and FOI Guidance for Authorities page.
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How will the Commissioner use his temporary power to determine that an authority has complied with FOISA even if timescales are not met?
An authority's ability to respond to a request may be affected in a range of ways by the Covid-19 pandemic – including staff absence, limited access to systems and increased workload – and these will be considered in deciding whether an authority complied with FOISA, despite failing to respond within the maximum timescale in force at the time of the response.
In considering whether he can find that an authority complied with FOISA for these purposes, the Commissioner will need to know the specific effects of the coronavirus – or the effects of the temporary legislative changes – which prevented an authority meeting the timescales, and why the failure should be considered reasonable in all the circumstances. For further guidance on this matter, please see the Commissioner's guidance on the Coronavirus (Scotland) Act 2020.
If the Commissioner finds that a failure to respond within the relevant maximum timescale was not due to the effect of the coronavirus or of the legislative changes (or if a failure was due to either of those factors, but the delay was not reasonable) he may conclude that the organisation has failed to comply with its FOI duties.
The Commissioner has produced separate guidance documents for requests responded to in the period 7 April to 26 May 2020, and requests responded at other times. These documents can be downloaded from the Covid-19 and FOI Guidance for Authorities page.
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The Coronavirus (Scotland) Act 2020 temporarily amends the Freedom of Information (Scotland) Act 2002, but not the Environmental Information (Scotland) Regulations 2004. As a result, requests for environmental information are still subject to the same timescales and provisions as before the pandemic began.
If a public authority fails to respond on time to a request for environmental information and an appeal is made to the Commissioner, the Commissioner would have no option but to find that the authority had failed to respond within the statutory timescale. However, the Commissioner will be sympathetic to the effects that coronavirus Covid-19 has had on the authority, and any unavoidable reasons for delay would be recognised in decisions issued by the Commissioner.
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Scottish public authorities submit statistics about requests made under FOISA and the EIRs each quarter. Quarterly statistics should be submitted via our statistics portal. The submission for April to June 2020 is due by early August. We have provided additional temporary guidance regarding how changes to the law should be reflected in your submission for this period, and authorities are also asked to submit answers to a short set of supplementary questions. If you are unable to submit statistics on time, please contact us.
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Details of all requests and responses should be recorded, along with reasons for decisions made – as far as possible this should be done in line with your authority's existing processes.
For example, we recommend that any authority affected by the coronavirus records the ways in which the pandemic has impacted on its ability to respond promptly to specific requests. Detailed time recording (or reasoning) may not always be possible during this period, but case-specific reasons will be important, e.g. when considering whether the duty to respond promptly has been met. This could include recording the fact that a key individual was unavailable or that it was impossible to access a specific set of information.
Authorities should only take account of those factors which are actually relevant in the circumstances. Not all Scottish public authorities will be facing a direct additional call on services as a result of the pandemic and not all will be impacted significantly in their ability to respond to requests by remote working. For further detail on this matter, please read our guidance note on the Coronavirus (Scotland) Act 2020.
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Every Scottish public authority has a duty to give reasonable advice and assistance to people who are making requests for information (under FOISA and the EIRs). This duty still applies during periods of disruption, such as the current pandemic – and is not affected by the Coronavirus (Scotland) Act.
Ways to ensure advice and assistance is provided if your authority is experiencing challenges or disruption may include ensuring you provide clear information about how your authority is dealing with requests during this time, information on any changes made to your processes or systems, and clear information about any restrictions or issues you are experiencing which may affect requests. This may take the form of a policy on how your organisation is dealing with requests for information during this period, which can be published and shared as appropriate. (The Commissioner's own policy on responding to requests during the pandemic is available here).
Advice and assistance can also include providing signposting to where information is proactively published by your authority, as well as the usual advice and assistance on what information is available for request, wording of requests and so on. Authorities should provide as much advice and assistance as is reasonably possible given the circumstances they are operating in, and reasoning, decisions and correspondence should be recorded appropriately.
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Every Scottish public authority has a duty to publish information in a proactive way. This is generally referred to as the "publication scheme" duty. It requires authorities to make information available to the public so that it can be accessed without having to be asked for. This duty still applies during periods of disruption, such as the current pandemic – and is not affected by the Coronavirus (Scotland) Act.
Publishing and promoting as much information as possible in this way can help reduce the number of requests for information your authority received (particularly useful at times where staffing levels may be a challenge). Information which could be published includes information on decision making and impact on services and resources as a result of the coronavirus Covid-19 pandemic.
Make sure your authority's Guide to Information is easily accessible on your website, and that information which may be of significant public interest, such as information on your organisation's response to the current pandemic, can be easily identified and located.
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There are no changes to fees, charging or cost limits under FOISA as a result of the Coronavirus (Scotland) Act. Issues related to fees and charging should therefore continue to be calculated in the normal way. Our guidance on fees and charging under FOISA has more information.
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The Commissioner recognises that an authority's ability to respond to a request may be affected by staff absence and other types of disruption. Authorities should respond to requests promptly, and if they are unable to respond due to staff absence, they must be able to demonstrate why, and record the reasons for this. For further guidance on this matter, please see our guidance note on the Coronavirus (Scotland) Act 2020.
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It would be good practice to tell the requester about the amended timescale in line with your duty to provide advice and assistance under section 15 of FOISA. If the request was received more than 20 working days ago, you could provide an update on the progress of the response (bearing in mind that you are required to respond promptly, irrespective of maximum timescales).
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The 20 working day maximum limit applies to outstanding reviews, including those requested before or while the extended timescale was in force (7 April to 26 May 2020 inclusive) and which you have not yet responded to. As with requests for information, it would be good practice to tell the requester about the amended timescale, and if possible provide an update on the progress of the review especially if the request for review was made more than 20 working days ago (bearing in mind that you are required to respond promptly, irrespective of maximum timescales).
In a case where a request for information was responded between 7 April and 26 May 2020, but the review in that case was not, the request for information will be subject to the 60 working day timescale, and the review will be subject to the current 20 working day timescale. For more information, see the Commissioner's specific guidance regarding requests responded to in this period.
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Yes, you should carry out a review. The duty to respond promptly has always been in place, and is an integral element of FOISA. In line with the Commissioner's guidance regarding requests responded to between 7 April and 26 May 2020, even though you had a maximum of 60 working days to respond, the requester still has the right to ask for a review on the basis that the response was not made promptly. You have a duty to carry out that review, subject to the limited exclusions relating to vexatious and repeated requests in section 21(8) of FOISA. You have a maximum of 20 working days to carry out the review.
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You have up to 20 working days to respond – provided your request for clarification was reasonable, the "clock" does not start counting down until you have received the clarification. The first working day is the day after you received the clarification. However, the duty to respond promptly still applies.
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When an authority issues a fees notice, the "clock" stops in relation to the working days time limit and restarts the day after the authority receives payment. You have 20 working days, excluding the period when the fee was due, to respond to the request. So, if a fees notice was issued 10 working days after the request was received, you have up to 10 working days to release the information. However, the duty to respond promptly still applies.
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Environmental information falling within the scope of the request must be processed in accordance with the EIRs, while any non-environmental information would be processed in accordance with FOISA. Remember that the EIRs allow an authority to extend the time for complying with a request by up to 20 working days if the volume and complexity of the information covered by the request makes it impracticable to comply within the original 20 working days. If you want to do this, you must notify the requester. Our guidance on the content of notices has further information.
For requests under FOISA, the Commissioner is able to decide that an authority has not failed to comply with FOI duties by failing to respond to a request within 20 working days, if he is satisfied that the failure to respond on time was due to either the effect of the coronavirus on that authority or the authority acting under the 60-working-day timescale when it was in force, and that the failure was reasonable in the circumstances (with primary consideration given to the public interest in complying).
However, if a public authority fails to respond on time to a request for environmental information and an appeal is subsequently made to the Commissioner, he would have no option but to find that the authority had failed to comply with the EIRs. However, the Commissioner will be sympathetic to the effects of the coronavirus has had on public authorities, and any unavoidable reasons for delay would be recognised in decisions.
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The Coronavirus Act does not make any changes to the right to appeal to the Commissioner if a requester is dissatisfied with the outcome of the review or if the authority failed to respond to their request for a review (or failed to respond promptly).
The Coronavirus Act does not alter the six month timeframe in which the requester can make an appeal to the Commissioner, but the Commissioner may use his discretion to accept late appeals where a delay has been caused by the impact of the Covid-19 pandemic.
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FOI rights still apply, regardless of subject matter. Requesters must not be unjustly
denied the opportunity to make a genuine information request. Requests may be inconvenient, and meeting them may at times stretch an authority's resources, but these factors, on their own, are not sufficient grounds for an authority to deem a request
vexatious. See our guidance on vexatious or repeated requests.
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Further information
Covid-19 and FOI: Information Hub
The Covid-19 emergency changes to FOI law in Scotland >>>
Making an information request during the Covid-19 pandemic >>>
Latest news on FOI during the Covid-19 pandemic >>>
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.
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This page was last updated on 30 June 2020.
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