Emergency legislation always throws up a number of quirks and one area where this is the case at present is in relation to freedom of information. Everyone accepts that the current circumstances will affect the ability of public authorities to carry out their usual activities, including responding to requests for information. Even where staff are not absent through illness or precautionary isolation nor redeployed to other priorities, they may be working from home and therefore not able to access information systems in the usual way. Official recognition of this has, however, taken different forms.
Deadlines and Enforcement
Outwith Scotland, there have been no changes to the law in relation to the time-limits for the handling of information requests under the Freedom of Information Act 2000. However, the Information Commissioner has issued a letter about The ICO’s regulatory approach during the coronavirus public health emergency which states that “an empathetic and pragmatic approach” will be taken. The public interest in transparency should be recognised, “especially where people have seen their civil liberties impacted”, but there should also be recognition of the fact that authorities will not have the resources to address requests or deal with backlogs.
In contrast Scotland, through the Coronavirus (Scotland) Act 2020, has made temporary changes to the Freedom of Information (Scotland) Act 2002. Under the new Act, the deadline for responding to requests for information or holding a review of how such a request has been handled has been extended from 20 to 60 days. The Scottish Ministers are also given power to further extend these deadlines for specific authorities, other than the Ministers themselves, by up to another 40 days, where this “will enable Scottish public authorities to better utilise resources to respond to coronavirus”.
Moreover, when the Scottish Information Commissioner is determining whether an authority has failed to meet its obligations, he may decide that not meeting a statutory deadline is not in fact a failure where the non-compliance is “(a) due to the effect of coronavirus on the authority generally or its ability to carry out its functions (including any action it had to take to better utilise its resources to deal with the effect of coronavirus), and (b) reasonable in all the circumstances.”
The Scottish Information Commissioner has, however, noted that the primary obligation remains to respond “promptly”, and that authorities should provide information of how the emergency has affected their ability to respond to requests.
The approach south of the border may seem pragmatic, relying on the discretionary nature of aspects of the enforcement regime to ensure that no authority is unreasonably penalised. Nevertheless, simply turning a blind eye to breaches of the statutory requirements is not exactly in keeping with the rule of law, however sensible the outcome. The more formal Scottish may seem unduly legalistic, but is constitutionally more correct – it is the law, not the discretion of the enforcing body that should determine whether or not obligations have been met.
In a democratic society, transparency and freedom of information are important even, and perhaps especially, at times of emergency when sweeping powers over citizens’ lives and businesses are conferred on public authorities. Proper concern for the pressures and difficulties being faced by authorities should not be abused to provide an excuse for hiding, or delaying, uncomfortable truths.
It should be noted though, that the legislative adjustment to the Freedom of Information (Scotland) Act 2002 has not been matched by any changes to Environmental Information (Scotland) Regulations 2004. The statutory deadlines here remain unaltered. Accordingly as the Commissioner has noted, if a deadline is missed then a finding that the statutory obligation has been breached is inevitable. There will, though, be sympathy for the effects of the emergency “and any unavoidable reasons for delay [will] be recognised in decisions issued by the Commissioner.”
It is not clear why environmental information is being treated differently, especially since the definition of this extends to include the currently central issue of human health in a fairly broad range of circumstances. Is it just an oversight or was it thought that this did not require attention as too trivial a source of work for the authorities most directly affected by the emergency? Or is there a more technical reason, based on the legal concern that changes would introduce incompatibilities with the EU Directive upon which the law is based and thus be beyond the competence of the Scottish Parliament?
Whatever the reasoning, the law on freedom of information has now become even more complex. Distinguishing between the two separate regimes for environmental and other information has always been a source of difficulty and confusion. There is now in Scotland an even more pressing reason for paying particular attention to whether a request for information falls to be considered as relating to environmental or more general information.
Professor Colin Reid