03 April 2020

MSPs have passed emergency legislation to tackle issues raised by the effects of the Coronavirus pandemic. The Coronavirus (Scotland) Bill 2020 (“the Bill”) covers a number of different areas impacted by the effects of Coronavirus.

Public authorities will no doubt welcome the amendments which are proposed to the Freedom of Information (Scotland) Act 2002 which will give them a significantly longer period of time to respond to freedom of information requests.

The Bill will extend the period for a response to FOI requests from 20 to 60 working days, easing the burden on many public authorities which are struggling with limited staff and restricted resources.

The Bill gives Scottish Ministers the power to specify additional circumstances in which a further extension of up to 40 working days may apply.

Significantly, the Bill also provides the Scottish Information Commissioner with the power to find that a public authority has not failed to comply with its obligations to respond timeously to freedom of information requests where that failure is due to the effect of Coronavirus.

While the extended period for response will be welcome for many public authorities, it should be noted that the deadlines are just that and responses should still be issued as promptly as possible.

In contrast to freedom of information requests, subject access requests (and all other data subject rights requests) remain unaffected for the time being. The period for responding to those requests remains one month from the date of receipt of the request. That period may already be extended under existing legislation where necessary taking into account the complexity and number of the requests made.

While no additional period for response is currently envisaged, the Information Commissioner’s Office has issued a statement confirming that it recognises that:

“resources, whether they are finances or people, might be diverted away from usual compliance or information governance work. We won’t penalise organisations that we know need to prioritise other areas or adapt their usual approach during this extraordinary period.

We can’t extend statutory timescales, but we will tell people through our own communications channels that they may experience understandable delays when making information rights requests during the pandemic.” 

Lynn Richmond, Partner, E: lyr@bto.co.uk / T: 0131 222 2934