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What the Commissioner May Review

You must appeal the decision to the public body first

Before the Commissioner can review the decision of a public body, the person who made the request (the requester) must first appeal the decision to the public body (within 4 weeks). This is called applying for an "internal review". The internal review will be carried out by a more senior official than the person who made the original decision. It will issue within 3 weeks. It is only when the internal review process is completed that the Commissioner can accept an appeal to her Office. There are exceptions to this general rule which are set out below.

Circumstances where internal review is not necessary

There are a number of circumstances where internal review is not necessary before the Commissioner can accept an appeal:

1. When the original decision was made by the head of the public body;

2. Where a third party has been consulted under section 29, and the decision is to release information otherwise protected by section 26 (confidential information), section 27(commercially sensitive information) or section 28 (personal information) in the public interest, the third party or the requester may appeal the decision directly to the Commissioner within 2 weeks;

3. Where a decision has been made to extend the time limit on a FOI request (section 9);

4. Where a decision has been made that the FOI Act does not apply to the records requested because section 46 applies.

5. Where a decision has been made to defer access to a record under section 11.

Decisions which the Commissioner may review:

Decisions made by public bodies which the Commissioner may review include:

• the refusal to provide access to a record (a document, either electronic or paper - see the definition of "a record" in the FOI Act);
• refusal of part of a record (the document is released with part of it deleted);
• refusal of the record in the manner sought (under the FOI Act you can request a photocopy, transcript, computer disk, or ask to examine a document);
• deferral of access to the record;
• a decision arising from a request to correct personal information (section 17);
• a decision to refuse to give reasons for acts which materially affect a person (section 18);
• a decision in relation to fees or a deposit sought;
• a decision arising under section 29 (e.g. where a body propose to release commercially sensitive information to a third party in the public interest),
• a decision to extend the time limit within which a request for access must be decided.

The Commissioner's decision on appeals is binding and conclusive. There is a right of appeal to the High Court from the Commissioner's decision, but only on a point of law.

It is important to note that matters relating to the general administration of public bodies and/or the manner in which they implement their statutory functions will not be considered by the Commissioner as they do not form part of her remit. Such complaints may be a matter for the Office of the Ombudsman.