Latest changes to FOI legislation now in force

01 October 2021

The Coronavirus (Extension and Expiry) (Scotland) Act is now in force. The purpose of the Act is to extend some of the provisions of the Coronavirus Acts passed in April and May 2020 in response to the pandemic, and bring the remaining provisions to an end.

In relation to FOI, the new legislation has the effect of phasing out the Commissioner's ability to consider the impact of coronavirus when deciding if an authority failed to comply with FOI timescales - this 'discretion' can only be applied in relation to FOI requests that were made on or before 30 September 2021.

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. 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 solely via email (rather than having to post hard copies), until 31 March 2022.

We have updated our Covid-19 and FOI Infohub and made the necessary minor amendments to our guidance.


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