Statement on the impact of the Covid-19 virus on FOI timescales

13 March 2020

A number of Scottish public authorities have contacted the Scottish Information Commissioner to ask about the requirements to comply with the timescales in the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (the EIRs) given the effect the Covid-19 virus is likely to have on their ability to respond to requests on time.

In the event that an appeal is made to the Commissioner about a failure by a public authority to respond on time, the Commissioner would, as things stand, have no option but to find that a public authority had failed to respond within the 20 working days set down by FOISA.

However, the Commissioner will be sympathetic to the effects that Covid-19 had on the public authority’s ability to respond to requests timeously in the event that staff are unable to attend work to answer requests or are unable to carry out full searches for information because they are, for example, working from home and are unable to access information. Any (unavoidable) reasons for delay would be recognised in any decision issued by the Commissioner.

Looking forward, discussions have been taking place with the Scottish Government on whether and/or when it would be appropriate for the Scottish Parliament to enact emergency legislation to extend the 20 working day timescales in FOISA. (Given that the EIRs are based on an EU Directive, which, in turn, is based on a UN Convention, the Scottish Parliament would not have the same power to extend the timescales in the EIRs.)

The Commissioner does not believe that extending the timescales is necessary at this stage.

The Commissioner will continue to keep in contact with the Scottish Government and will update this website as and when necessary.

Further updates on the impact of the Covid-19 virus will be published on our latest news page.