30 April 2020

Public authorities will no doubt welcome the amendments 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.

FOI Requests

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

Significantly, the Act 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.

Subject Access Requests and other Data Subject Rights Requests

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 guidance confirming that it will take an “empathetic and pragmatic approach” to enforcement during the Coronavirus emergency.

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