Coronavirus (Scotland) (No.2) Act 2020: second report on the Scottish Ministers' responses to requests for information under the Freedom of Information (Scotland) Act 2002

Introduction

Purpose of report

1. The Coronavirus (Scotland) Act 2020 ("the first Act") responds to the emergency situation caused by the coronavirus outbreak. It contains temporary measures to ensure that essential public services can continue to discharge their functions in the way that they were intended to. The Freedom of Information (Scotland) Act 2002 ("FOISA") is temporarily modified by these measures in two ways:

(a) the Scottish Information Commissioner ("the Commissioner") is given discretion to take the impact of the coronavirus outbreak into account when deciding whether Scottish public authorities have failed to comply with the timescales prescribed in FOISA;

(b) the Commissioner and Scottish public authorities are enabled to issue formal notices under FOISA electronically.

2. The Coronavirus (Scotland) (No.2) Act 2020 ("the second Act") makes further provision about the emergency situation caused by the coronavirus outbreak. Paragraph 12 of schedule 4 to the second Act provides that while the temporary modifications to FOISA made by the first Act are in force, the Scottish Ministers must report to the Scottish Parliament on certain aspects of their responses to requests for information under FOISA. This requirement is referred to in this report as "the coronavirus FOI reporting requirement".

3. This is the second report laid before the Scottish Parliament in accordance with the coronavirus FOI reporting requirement.

The Freedom of Information (Scotland) Act 2002

4. FOISA came into force on 1 January 2005. It provides a statutory right of access to information held by Scottish public authorities. These range from the Scottish Parliament and the Scottish Government to local authorities, NHS boards, higher and further education institutions, doctors and dentists, among others.

5. Requested information must be provided unless it is subject to one or more exemptions, as set out in FOISA. If a requester is dissatisfied with the response received to a request or does not receive a response, he or she can ask the authority to review its decision or handling of the request.

6. The Commissioner both promotes and enforces FOISA. Requesters who remain dissatisfied with the conclusions of an authority's review of their request can appeal to the Commissioner for a decision.

Existing reporting arrangements

7. While the second Act has introduced the coronavirus FOI reporting requirement, the Scottish Ministers (and other Scottish public authorities) report on their FOI performance in terms of several existing reporting arrangements. We have summarised these existing arrangements to provide wider context for this report, and in the interests of promoting access to them.

8. The Scottish Government reports monthly to the Commissioner on its FOI performance. This arrangement was put in place in April 2017 and the Scottish Government agreed targets to improve response times, with a target of 85% of request and review responses to be issued within the relevant deadlines in FOISA and the Environmental Information (Scotland) Regulations 2004 in 2017, 90% in 2018, and 95% by 2019. We publish our performance figures proactively on the Scottish Government website^[1], with the most recently-published figures relating to April 2020.

9. In common with all other Scottish public authorities, the Scottish Government reports quarterly to the Commissioner on a wider range of statistics in relation to FOI performance. The quarterly returns are published via the Commissioner's statistics portal^[2], with returns required approximately six weeks after the end of each quarter to give authorities time to collect the necessary data and report it to the Commissioner. The Commissioner's website contains detailed information about the list of statistics that have to be provided, and details about what should be submitted^[3].

10. The Scottish Government also publishes an annual report on their handling of information requests, and have done so since FOISA came into force in 2005. These reports are accessible on the Scottish Government website^[4], with the most recent report relating to the handling of information requests in 2018. Work on the report for 2019 would ordinarily have begun in spring 2020, but it has been paused in consequence of the significant redeployment of staff from the FOI Unit to coronavirus-critical roles.