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What the Commissioner May Review

First, you must apply to the FOI Body for an Internal Review of the FOI decision

Before the Commissioner can review the decision of an FOI body, the person who made the FOI request (the requester) must first appeal the decision to the 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 official who made the original FOI decision. The decision following Internal Review should issue within 3 weeks. Generally, the Commissioner cannot accept an application for review of a decision until the Internal Review process is completed. There are certain exceptions to this general rule:

  1. When the original FOI decision was made by the head of the public body;
  2. Where a third party has been consulted under section 38, and the decision is to release information otherwise protected by section 35 (confidential information), section 36(commercially sensitive information) or section 37 (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 14);
  4. Where a decision has been made that the FOI Act does not apply to the records requested;
  5. Where a decision has been made to defer access to a record under section 16.

Decisions which the Commissioner may review:

FOI decisions made by FOI bodies which the Commissioner may review include:

  • 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 10);
  • a decision in relation to fees or a deposit sought;
  • a decision arising under section 38 (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 following review is binding and conclusive. There is a right of appeal to the High Court, on a point of law, from a Commissioner's decision. Any decision of the High Court on an appeal carries a right of appeal to the Court of Appeal.

It is important to note that matters relating to the general administration of FOI bodies and/or the manner in which they implement their statutory functions are not within the remit of the Information Commissioner. Such complaints may be a matter for the Office of the Ombudsman.