Professor Kevin Dunion, Centre for Freedom of Informa6on, University of Dundee ; former 
Sco<sh Informa6on Commissioner; author of Freedom of Informa,on in Scotland in Prac,ce  
14 May 2020 
The pandemic’s impact on public bodies is clear, with some with buildings closed and staff 
working from home ; others over-stretched by the demands of tackling Covid-19. It was well 
accepted even by freedom of informa6on advocates that the 6me allowed to respond to FoI 
requests would have to be relaxed. But no-one expected that Scotland would be one of the 
first countries in the world to use emergency legisla6on to triple the length of 6me allowed,  
to 60 days. It has drawn unwelcome interna6onal comment. The Index of Censorship has 
highlighted Scotland and Brazil as making the most far reaching changes to FoI laws (and 
President Bolsanaro’s decree was struck down by the Courts there.)  
In the United Kingdom the law has not been changed. The Informa6on Commissioner there 
has cau6oned “ These rights are a part of modern life we must not lose” but indicated some 
flexibilty of approach is required, saying she will “con6nue to safeguard informa6on rights in 
an empathe6c and pragma6c way that reflects the impact of coronavirus.” A similar stance 
has been taken by Commissioners in other regimes such as New Zealand. (However, we 
should acknowledge that some other governments have suspended or amended the 
requirements of FoI law.)  
The view may be taken that the FoI law in Scotland does not permit the Sco<sh Informa6on 
Commissioner (SIC) to deal sympathe6cally with delays, and would have to find authori6es 
in breach of the 6me limits to respond to requests no ma[er the extenua6ng circumstances. 
If Sco<sh Ministers felt this pragma6c approach needed to be underpinned in law it has 
done so in the Coronavirus (Scotland) Act 2020, enabling the Commissioner to determine
that an authority has not failed to comply with FOISA, if the failure was due to the effect
of coronavirus. In most circumstances that should be sufficient. 
(Considera6on could also have been given to par6cularly hard- pressed authori6es to apply 
to the Commissioner for an extension of 6me, without the sweeping permission to allow all 
authori6es to take up to 3 months respond.) 
The concerns with the extended 6mescales which allow 60 working days to respond to FoI 
requests and further 60 working days to respond to a request for review are many, such as : 
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Despite the SIC reminding authori6es that the law s6ll requires them to respond 
promptly to requests, the reality is that many officials regarded mee6ng the previous 
20 day limit as sufficient to be in compliance with their obliga6ons. They may take 
the view that the new Act allows them to do the same with the extension to 60 days 
Once informa6on is disclosed it may be considerably out-of- date. The law is such 
that the requester is only en6tled to the informa6on held by the authority at the 
6me of request. It may be well over 6 months old by the 6me it is disclosed. 
The new 6me limits do not apply to requests for environmental informa6on, which is 
dealt with under the Environmental Informa6on (Scotland) Regula6ons (EIRs) , for 
which 20 working days is s6ll the required 6me for compliance. Authori6es will have 
to dis6nguish between environmental and non- environmental requests and make 
sure to deal with them within different 6me limits accordingly. For central and local 

 government this could be onerous. The sta6s6cs held by the SIC show that in 2019, 
17% of requests to Sco<sh Government and its agencies were dealt with under the 
EIRs and this propor6on rises markedly for councils -  nearly 40% of requests to City 
of Edinburgh Council are for environmental informa6on; for Sco<sh Borders Council 
the figure is 42% , for Aberdeen City it is 32%.   
At this 6me of unprecedented ac6on by Government which impacts on family life, 
livelihoods and public services there has to be a recogni6on that people will want 
informa6on in as close to real 6me as possible. As the Interna6onal Conference of 
Informa6on Commissioners, which supports a pragma6c approach, has said “The public’s 
right to access informa6on about such decisions is vital.”  

h[ps://www.indexoncensorship.org/2020/05/how-foi-laws-are-being-rewri[en-during-thecovid-19-crisis/ 
h[ps://verfassungsblog.de/authoritarianism-without-emergency-powers-brazil-undercovid-19/ 
h[ps://www.informa6oncommissioners.org/covid-19