The Scottish Parliament passed the Coronavirus (Scotland) (No. 2) Bill on Thursday 21 May, making further changes to the law to deal with the ongoing Covid-19 pandemic.
The Bill, which we expect to receive Royal Assent and become law early next week, repeals certain parts of the Scottish Government's previous emergency legislation, the Coronavirus (Scotland) Act 2020, which had extended the deadlines for public bodies in Scotland to deal with requests under the Freedom of Information (Scotland) Act 2002.
The normal deadlines for a public body to comply to a request for information, or a request for a response to be reviewed, are 20 working days. The first Coronavirus (Scotland) Act extended that to 60 days for all public authorities. The extended period had immediate effect, including for requests for information already received.
Those extended deadlines now disappear and the statutory deadline reverts immediately, upon commencement, to the pre-existing 20 day period.
What does this mean for public authorities who have received FOI requests?
The first Coronavirus (Scotland) Act also allowed the Scottish Information Commissioner to decide that a public body had not failed to comply with the time limits, even if in fact it had, where the public body had only failed to do so due to the pandemic.
That provision will remain. The intention of the Bill is that extending the deadline should not be automatic, but should be judged (including by the Scottish Information Commissioner) on a case by case basis.
In short, if a delay is actually caused by the diversion of resources to deal with the pandemic, that delay can still be justified and will not necessarily be a failure to comply, as the Commissioner has recognised.
The Bill also allows the Commissioner to determine that a public body which only failed to comply with FOI deadlines as a result of following the extended deadlines while they were in force, has not failed to comply with the law. However, this is subject to specific provision that the "primary consideration" is the public interest in prompt compliance with an FOI request.
The Commissioner has indicated that guidance will be published on these changes. Until that is available the position remains unclear, but while the Commissioner may be sympathetic to authorities who, in good faith, operated on the basis of the extended deadlines, it would be prudent for all authorities will outstanding information or review requests to start operating now on the basis that the deadline is once again 20 working days, rather than waiting until the Bill comes into force.
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