FOIMan highlights updated laws and guidance affecting FOI in the UK.

Since I last wrote, the Scottish Parliament has narrowly voted in favour of amendments to the Scottish FOI Act (FOISA) in the Coronavirus (Scotland) Act. The changes to FOISA are time limited to the end of September (though this period can be extended by regulations up to the end of March or September next year) but consist of:

  • most Scottish authorities will still have to respond ‘promptly’ but the long stop of 20 working days increases to 60 working days
  • the Keeper of the Records of Scotland will have up to 70 days for requests for closed records in their custody
  • these limits will also apply to internal reviews
  • Scottish ministers can extend these deadlines by up to 40 working days if they are satisfied that this is necessary to facilitate coronavirus-related activities
  • the Scottish Commissioner can decide that an authority is not in breach if a delay in responding is reasonable given the authority’s situation in relation to coronavirus.

In the week prior to the Act being made law, the Scottish Commissioner expressed some unease in relation to these changes, in particular noting that:

‘The provisions set out in this Bill include change to a number of areas which may negatively impact on international perception of Scotland’s commitment to transparency and accountability through strong FOI law.’ (from the Commissioner’s briefing note to Scottish MSPs)

The UK government has not made any amendments to the UK FOI Act. However, as noted previously, the Information Commissioner had indicated that they would enforce in a pragmatic and reasonable way. The ICO has now issued a more formal policy note explaining their approach to their regulatory work during the present crisis. In relation to FOI and the Environmental Information Regulations, the ICO say that they recognise that the coronavirus pandemic could impact on authorities’ ability to comply with deadlines. However, they still expect authorities to keep records of their decision-making. The ICO will:

  • continue to process complaints but will seek to minimise contact with authorities
  • recognise that the response to the pandemic will cause delays to response times, but expect authorities to ‘recognise the public interest in transparency and seek as far as possible to continue to comply with their obligations for particularly high-risk or high profile matters’
  • understand that ‘extreme circumstances’ might mean that FOI services have to be suspended (though note that emphasis on ‘extreme circumstances’ – this does not appear to licence widespread suspension of FOI services – there should be specific, demonstrable reasons why an authority does this)
  • expect authorities to proactively publish information of importance to their communities
  • look to authorities to keep proper records, bearing in mind that this period will be subject to public scrutiny in the future.

Authorities will no doubt appreciate this flexibility in approach from the regulator, which the ICO has pointed out is in line with international approaches to information rights at this time. However, I think it’s worth noting the Commissioner’s emphasis that this is not a licence to abandon FOI obligations over the coming months. If it isn’t possible to answer requests on time or to continue running FOI services for a period, authorities should be documenting why that is the case in their specific circumstances, so they can be ready to justify their actions later.

This caveat is important as whilst most will sympathise with the current pressures on public authorities, there are already some warning against governments using the current crisis as an excuse to erode rights to freedom of information and freedom of expression.