Changes to FOI legislation set to be phased out

21 June 2021 (updated 25 June 2021)

The Coronavirus (Extension and Expiry) (Scotland) Bill has been passed by the Scottish Parliament. The Bill extends some of the provisions of the Coronavirus Acts - passed in April and May 2020 in response to the effects of the Covid-19 pandemic - and confirms that the remaining provisions will expire as planned on 30 September 2021.

In relation to FOI, the new legislation will gradually end the Commissioner's ability to consider the impact of coronavirus when deciding if an authority failed to comply with FOI timescales - this provision will expire on 30 September 2021, except in relation to FOI requests that were made on or before that date.

In practice, this transitional approach means the impact of the pandemic may continue to be a relevant consideration in some decisions made by the Commissioner for some time to come - as the power will remain in force in relation to requests made on or before 30 September 2021. 

However, for Scottish public authorities, it means that in cases where:

  • a request is received on or after 1 October 2021,
  • the authority does not respond to that request within a maximum of 20 working days, and
  • the case subsequently comes to the Commissioner via an appeal,

the authority will not be able to ask the Commissioner to consider the impact of the pandemic in deciding whether or not the authority failed to comply.

Meanwhile, the Bill allows the Commissioner to continue to issue decisions and other formal notices via email (rather than having to post hard copies), until 31 March 2022.

Although the Bill has been passed by the Scottish Parliament, it will not become law until it gains Royal Assent, which is expected to be in early August. The above change relating to FOI will then take effect on 1 October 2021. Ahead of that date, we will update our Covid-19 and FOI Infohub, make any necessary amendments to our guidance and contact all authorities to ensure they are aware of the change and what it means.

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