What a difference a day makes

Back in 2013 I blogged about a little-known (not unknown, as some commenters thought I was suggesting) oddity of the Freedom of Information Act 2000 (FOIA). This oddity is that a bank holiday falling in any part of the United Kingdom counts as a non-working-day for the purposes of FOIA. So, as January 2nd (or the nearest substitute day) is a bank holiday in Scotland, it is not a working day for the purposes of calculating the maximum timescale for compliance with a request made under FOIA, despite the fact that Scotland has its own Freedom of Information (Scotland) Act 2002.
What “bank holiday” means, according to section 10(6) of FOIA, is 

any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom

And section 1 of the Banking and Financial Dealings Act 1971 says 

the days specified in Schedule 1 to this Act shall be bank holidays in England and Wales, in Scotland and in Northern Ireland as indicated in the Schedule

The Schedule therefore provides a number of dates which are to be considered as bank holidays

All straightforward then? Not quite. Sections 1(2) and 1(3) of The Banking and Financial Dealings Act 1971 also provide that the Queen can effectively remove or add a bank holiday “by proclamation”. What this means has recently been considered by the First-tier Tribunal (Information Rights) (FTT), and it shows that even the Information Commissioner’s Office (ICO) can get this issue wrong sometimes. In the case, the ICO had said in its decision notice that the public authority, Monitor, had complied with its obligation to respond to a FOIA request within twenty working days, because the period involved included two bank holidays within the UK (on 14 July (Northern Ireland) and 4 August (Scotland)). However, when faced with an appeal to the FTT by the requester, the ICO faltered, and

recalculated the 20 day period and concluded that while July 14 was commemorated as the anniversary of the Battle of the Boyne for the purpose of a public holiday in Northern Ireland it was not a bank holiday and accordingly the response from Monitor had been outside the 20 day period

Not so fast, said the FTT – remember section 1(3) of the Banking and Financial Dealings Act 1971? Well, as the London Gazette records, on 14 June 2013 a proclamation was made by Her Majesty, providing that

…We consider it desirable that Monday the fourteenth day of July in the year 2014 should be a bank holiday in Northern Ireland

As the FTT said

The effect of this was to insert a bank holiday in July…accordingly [Monitor] responded within the time limit

All very arcane and abstruse, no doubt, but practitioners and requesters should note that the London Gazette records that on 18 July 2014 Her Majesty also proclaimed that 13th July 2015 would also be a bank holiday. So, for FOI requests whose normal twenty-working-day period includes the date of 13th July this year, everyone needs to bear in mind that, as hard as they may be working on that date, it is not to be counted as a FOIA working day. 

But everyone should also bear in mind that, if they find this tricky, even the ICO gets confused sometimes.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with..