The review of FOI Decisions of Public Bodies

One of the functions of the Information Commissioner is to review decisions made by public 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 (known as the Section 16 manual because this is the section of the FOI Act requiring its production). There are currently over 400 public bodies covered by the FOI Act. You will find information on how to apply to the Information Commissioner for a review of a decision by a public body in the "Appeal to the Commissioner" part of this website.

Request for information

Under the FOI Act, a requester makes a request for records (electronic or paper documents) and the public body must issue a decision on that request within four weeks. The public 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 public body can only do so in accordance with the FOI Act which provides for the protection of certain information through its "exemption" clauses (Please see Chapter 4 of the Department of Finance Short Guide to the FOI Acts for an explanation of "exemptions"). There are also sections of the Act which describe information which is not covered by the Act and public bodies may rely on these to refuse information.

Internal review by the public body

If the requester is unhappy with the decision, he/she must first appeal the decision to the public body (within 4 weeks). The public body must then issue an "internal review" decision. Non-reply within a certain time-frame is considered to be a refusal and the requester can move on to the next stage: internal review, or appeal to this Office. On the rare occasions where there is no internal review mechanism available, an application may be made directly to the Commissioner. There is also a small number of "first" decisions which bypass the internal review procedure.

A fee is payable at all three stages of the process but only for non-personal requests. There is no charge for requests for information that is about you personally.

Appeal to the Information Commissioner

If, following an internal review decision, the requester is still dissatisfied, he or she can then appeal to the Information Commissioner who will carry out an independent review of the decision. The Commissioner will examine the records in question and will also invite submissions from the requester and the public body. The Commissioner may also consult any third parties whom she considers would be affected by her 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) or 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 public body. This means that the public 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 public 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 4.9 of this Office's Procedures (Section 16) 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.