Kelly Fraser

The new Coronavirus (Scotland) Act which passed the Scottish Parliament on 1 April 2020, contains provisions to extend the deadlines under the Freedom of Information rules (FOISA) as a result of the current Coronavirus pandemic.

The Bill extends the current statutory deadlines that Scottish public authorities, including registered social landlords (RSLs), are obliged to adhere to when responding to requests for information under FOISA. The deadlines for responding to a request for a review of a response are also to be extended.

The changes at a glance

Under the Bill, the current 20 working days deadlines in section 10 of FOISA (responding to a request) and section 21 (review by a Scottish public authority) are extended to 60 working days.

The initial text within the Bill did seek to go further by allowing authorities to apply an additional extension of up to 40 working days where an authority was not able to respond to a request due to the volume and complexity of the information request or the overall number of requests being dealt with by the authority. However, this was removed during Stage 2 of the Bill following concerns raised by the Scottish Information Commissioner.

As well as the extension of deadlines, the Bill contains further powers for the Scottish Ministers to specify additional circumstances in which the statutory deadlines may be extended (subject to any extension not exceeding 40 working days and where notice is given to the requestor) and for the Scottish Information Commissioner to take account of the impact of coronavirus in respect of an authority’s failure to comply with the statutory deadlines under FOISA.

The Commissioner’s view

The Scottish Information Commissioner issued a briefing with comments on the original proposed amendments to FOISA under the Bill and expressed certain concerns, some of which were addressed through amendments to the original text of the Bill.

Authorities across Scotland, including RSLs, are currently facing unprecedented challenges in respect of delivery of services and day-to-day operations. Office closures and remote working mean that locating and retrieving information in respect of a request under FOISA is much more difficult and may even be impossible in some circumstances.

The Scottish Information Commissioner does recognise this in the response to the amendments introduced under the Bill. However, the briefing reiterates that authorities, wherever possible, should continue to meet the requirement under Section 10 of FOISA to respond to requests for information “promptly”.

While the Scottish Information Commissioner did not seek to express any major concerns regarding the proposed extension to 60 working days, the same could be said for the original proposal to allow authorities to further extend the deadline to 100 working days in the circumstances prescribed by the Bill.

In expressing such concerns, the Scottish Information Commissioner was of the view that it was not necessary to have any further extension beyond the additional 60 working days on the basis that the Bill already contains provisions that will help to mitigate the current challenges faced by authorities in complying with their obligations under FOISA. In particular, the 60 working day deadline, the Scottish Information Commissioner’s powers to determine that an authority has not failed to comply with FOISA if such failure is a result of COVID-19 and the Scottish Ministers’ power to specify further circumstances for an extension.

Summary

While authorities may still face challenges in complying with their obligations to respond to requests for information under FOISA, there is no doubt that the extensions will be very welcome. That being said, the Bill does not extend the deadline for responding to requests for environmental information under the Environmental Information (Scotland) Regulations 2004, which remains 20 working days with the power to extend to 40 working days, and so authorities will need to ensure that requests for environmental information are identified at an early stage.

• Kelly Fraser is senior associate at Harper Macleod

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