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The review of decisions of FOI Bodies

One of the functions of the Information Commissioner is to review decisions made by FOI bodies on requests for information made under the FOI Act. A broad overview of that function is given here. A detailed description can be found in this Office's Procedures Manual. The Central Policy Unit, at the Department of Public Expenditure and Reform provides information on the FOI bodies who come within the remit of the Information Commissioner. For information on how to apply to the Information Commissioner for a review of a decision by an FOI body, see 'How to Apply for a Review'.

Request for information

Under the FOI Act, a requester makes a request for records (electronic or paper documents) and the FOI body must issue a decision on that request within four weeks. The FOI body may decide to release all of the information requested, to release part of it, or to refuse all of it. Where it is refusing access to information, the FOI body can only do so in accordance with the FOI Act which provides for the protection of certain information through its "exemption" clauses. See Guidance Notes developed by the FOI Central Policy Unit. There are also sections of the FOI Act which describe information which is not covered by the Act and FOI bodies may rely on these to refuse information.

Internal review by the FOI body

If the requester is unhappy with the decision of an FOI body, he/she must first appeal the decision to the body (within 4 weeks). The FOI body must then issue an "internal review" decision.

Deemed Refusal
Non-reply by an FOI body to either your initial request, or internal review request within a certain time-frame is considered to be a 'deemed refusal' and the requester can move on to the next stage. On the rare occasions where there is no internal review mechanism available, an application may be made directly to the Commissioner. More information; see 'CPU Manual Part 1 -Processing FOI Requests including sample letters - 8.11 Deemed Refusals'.

Fees
A fee is payable at the internal review stage to the FOI body and for an application for review to the Information Commissioner but only for access to information that is regarded as 'non-personal'. There is no charge for an initial FOI request to an FOI body.

Appeal to the Information Commissioner

If, following an internal review decision, the requester is still dissatisfied, he/she can then appeal to the Information Commissioner who will decide whether to accept the application and then may carry out an independent review of the decision of the FOI body. The Commissioner will examine the records in question and will also invite submissions from the requester and the FOI body. The Commissioner may also consult any third parties who he considers would be affected by his decision (for example, if someone requested information about a tender competition, the businesses that were involved would be consulted by the Commissioner). Following this review, the Commissioner may uphold (affirm), vary the decision, or annul it and make a new decision.

Burden of proof

It is important to note that the FOI Act says that the burden of proof falls on the FOI body. This means that the FOI body must show the Commissioner that its decision was justified. It can do this by presenting evidence and by stating its case in relation to the relevant section(s) of the FOI Act. The only exception to this rule is where someone wants to have personal information amended where he or she thinks it is inaccurate: in that case the burden of proof falls to the person requesting the amendment.

Settlements

Many appeals to the Commissioner can be settled informally without the need for a formal decision. The Commissioner's Office will talk to both parties (sides) and try to negotiate a satisfactory outcome for everyone. It is the Commissioner's experience that talking to both sides reduces room for misunderstanding on either side and can often lead to a better outcome for the requester. Every stage in the negotiations is completed with the agreement of all parties.

Third-party information

The FOI Act says that third parties must be consulted if a public body is going to release information about them in the public interest which would otherwise remain protected. If the decision of the FOI body is to release information, the third party may appeal directly to the Information Commissioner within 2 weeks. More information on this process can be found at section 5.2 of the Office's Procedures manual.

More information on the Commissioner's review function can be found at How to Apply for a Review by the Information Commissioner, and How the Commissioner deals with review applications.