Your Rights > Covid-19 and FOI: Your questions answered
Covid-19 and FOI: Your questions answered
Below we provide answers to questions that people requesting information may have about the impact the coronavirus Covid-19 pandemic and the Scottish Parliament's Coronavirus Act (as amended by the Coronavirus (Scotland) (No.2) Act) has on FOI in Scotland.
The Scottish Parliament introduced temporary changes to
support Scottish public authorities when responding to the Covid-19
pandemic. The Explanatory Notes which accompanied the changes set out that they were made to ensure that essential public services could continue to be provided at a time when organisations may face challenges as a result of staff illness, self-isolation, or the re-deployment of staff, and so they can focus on work which responds to the outbreak and protects the health of those living in Scotland.
The changes made are not permanent. They came into force on 7 April 2020 - with additional changes in effect from 27 May 2020 - and some are due to expire on 30 September 2021, while other will remain in place until 31 March 2022. (They had been due to expire before, but the Scottish Parliament voted to extend them by two six-month periods and then passed a new law to extend or expire different changes.)
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Yes. FOI requests can still be made as normal in the current situation. The changes to the law only affected the timescales within which public authorities must respond, and only for a limited period (7 April to 26 May 2020). There's more information on making a request in general on our Your Rights pages.
When making a request for information, you may wish to consider the impact of Covid-19 on the authority you are contacting. Your information rights remain vitally important, and the FOI principles of openness, transparency and accountability will play an essential role in supporting public trust at this difficult time. If you're planning a request, it's worth bearing in mind that there may be things you can do to reduce the impact of a request on an organisation while still accessing the information you need.
For example, when drafting your request, think about whether there is any way the request might be narrowed to reduce its impact and speed up your response. Our Tips for Requesters page has lots of advice that can help with this.
And remember, FOI law also requires that public bodies publish lots of information about their work - including information on the decisions they make, the services they provide, their policies and procedures and the money they spend. It's always a good idea to take a look at their website before making a request - the information you need might just be a few clicks away.
And finally, if you are making a request, we'd suggest that you send it to an authority by email, using its FOI email address, rather than by post. Remember that authorities may still be short-studded or have people working from home, so an email request to the FOI address published on the authority's website will ensure that your request gets to the right person for a response as quickly as possible.
For more information on using your FOI rights, visit
www.itspublicknowlege.info/yourrights.
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Public authorities have up to 20 working days to respond to requests. However, they are still required to respond "promptly" to the requests for information they receive, as well as to requests for review. The 20-working day timescale for responses is a maximum timescale only.
If an organisation has been significantly affected by Covid-19, however, your response may take longer than normal. You can ask an authority to review its handling of your request - even if 20 working days have not passed - if you think the authority has failed to respond "promptly", even taking into account the effects the panedmic may have had on the authority. However, before doing this, you might find it helpful to contact the authority to ask if they know when a response is likely to be issued as requesting a review may lead to further delay.
Also please note that between 7 April and 26 May 2020, an extended timescale for responding to requests was in force. For requests that were responded to in this period, authorities had a maximum of 60 working days from when they received the request. However, they were still required to respond promptly i.e. without delay. For more information, see the Commissioner's guidance for public authorities.
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The public authority has a duty to respond to you promptly, and within a maximum timescale of 20 working days. If you are dissatisfied with the way a public authority has dealt with your request you can ask it to review its failure to respond; if you still do not receive a response (or are unhappy with any response you receive), you can then make an appeal to the Scottish Information Commissioner. The Commissioner can then investigate and determine whether the authority has failed to comply with FOI law. The factors the Commissioner will consider are set out in his guidance.
If your appeal to the Commissioner is based on the fact that a response to a review was not "prompt", despite a response being given within 20 working days, and does not take into account any of the effects Covid-19 may have had on the authority, the Commissioner may need to consider whether your appeal is frivolous before carrying out an investigation.
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The public authority has a duty to respond to you promptly, and within a temporary maximum timescale of 20 working days. If you are not happy for any reason with the way the authority has dealt with your request you can ask them to review their actions. The authority will have a further 20 working days to respond (although they should again do so promptly).
If you are still dissatisfied after they have reviewed their decision you can then make an appeal to the Scottish Information Commissioner. The Commissioner will investigate your case and determine whether you should receive the information requested in full or in part, or whether the authority's decision should be upheld.
If your appeal to the Commissioner is based on the fact that a response to a review was not "prompt", despite a response being given within 20 working days, and does not take into account any of the effects that Covid-19 may have had on the authority, the Commissioner may need to consider whether your appeal is frivolous before carrying out an investigation.
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The Coronavirus (Scotland) Act 2020 (as amended by the Coronavirus (Scotland) (No.2) Act) gives the Commissioner the ability to decide that an authority has complied with the FOI Act even if it failed to meet the maximum 20-working-day deadline, if the failure was due to the effect of coronavirus, and if the delay was reasonable. The Coronavirus (Extension and Expiry) (Scotland) Act brings this provision to a gradual end, but it will still apply for requests made on or before 30 September 2021.
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. These will be considered by the Commissioner when deciding whether an authority which has failed to respond within 20 working days has nevertheless
complied with the FOI Act. The Commissioner has produced guidance on this for public authorities.
As set out in the guidance, if the Commissioner found that a failure to respond within 20 working days was not due to the effect of the Covid-19 pandemic (or if a failure was due to the effect of the pandemic, but the delay was not reasonable) he may conclude that the organisation has failed to comply with its FOI duties.
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No. The changes only apply to the FOI Act in Scotland.
If you were asking for environmental information, the timescale changes introduced by the Coronavirus (Scotland) Act 2020 didn't apply. This is because the law which applies to requests for environmental information, the Environmental Information (Scotland) Regulations 2004, is not affected by the Coronavirus (Scotland) Act.
The changes also do not affect requests for your personal information, which are dealt with under UK data protection law and regulated by the UK Information Commissioner's Office.
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No. If the information you want is about the environment the authority must respond to your request under Environmental Information (Scotland) Regulations 2004 (EIRs).
If the information you request is not defined as environmental, it must be dealt with
under the Freedom of Information (Scotland) Act 2002, which is affected by the temporary changes of the Coronavirus (Scotland) Act 2020.
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Further information
Covid-19 and FOI: Information Hub >>>
Making an information request during the Covid-19 pandemic >>>
Covid-19 emergency changes to FOI law in Scotland >>>
Latest news on FOI during the Covid-19 pandemic >>>
We will continue to update the information on these pages as the situation changes and new information becomes available.
Our office is currently closed but if you have an urgent query please contact us.
This page was last updated on 24 September 2021.
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