Registered Social Landlords (RSLs) may already be concerned about their ability to respond to requests within the statutory 20 working day timescale due to the possible implications of Covid-19. Will Covid-19 affect your FOISA deadlines? In light of the continued spread of the virus, the Scottish Information Commissioner (SIC) has published a statement addressing the obligation on public authorities to comply with the timescales set out in the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (the EIRs). A link to the statement can be found here.
The SIC’s statement has provided some reassurance to RSLs in that they have confirmed that if an appeal is submitted to the SIC regarding the failure of a public authority to respond to a request within the 20 day timescale the SIC will recognise any unavoidable reasons for delay when issuing their decision. For example, the delay may be the result of staff members being unable to access information due to them working from home or a delay in responding due to housing associations working on a skeleton staff.
However, the SIC confirmed that although they may take the impact of the Covid-19 virus into account when making a decision, they will have no option but to find that a public authority had failed to respond within the 20 working day statutory timescale. This would be considered a technical breach of FOISA/the EIRs, however SIC’s confirmation that they will recognise any unavoidable reasons for delay in their decisions may help mitigate the negative consequences of any breach.
The SIC will be engaging in ongoing discussions with the Scottish Government regarding whether or not it would appropriate for the Scottish Parliament to enact emergency legislation to extend the 20 working day timescales. However, the SIC does not believe that it is necessary to do this at the moment.
The SIC will continue to monitor the situation and any further updates will be published on their website and will be monitored by TC Young. RSLs should also continue to monitor any guidance issued from the Scottish Housing Regulator regarding Covid-19.
If RSLs have any concerns regarding the possible implications of Covid-19 on their FOI/EIR duties please do not hesitate to contact a member of our team.