Sometimes there is no option but to complain about the handling of Freedom of Information request. Thankfully, there are mechanisms in place to do so and all of them are free.
The process of complaining can be made over three initial stages, each becomes more legalistic than the previous. On this page we outline the three initial stages of complaint. However we have also produced some template lines of complaint that can be used for some commons areas, these can be found here.
Stage 1: Internal review
The first step for any official complaint about the handling, response, or refusal of a Freedom of Information request should be with the public authority where the initial request was made.
It is not a requirement for a public authority to have an internal review process, although it is listed in the Section 45 Code of Practice for the Act. In reality all but the smallest public authorities will have a procedure for handling FOI complaints.
In this stage another member of staff from the public authority should look at all of the circumstances of the FOI request and assess them for a second time. The second member of staff should ideally be in a more senior position.
When requesting an internal review a requester should say the reasons why they believe the request has been handled wrongly. These could be to do with the amount of information that has been redacted, if an exemption has been wrongly applied, if the balancing of the public interest has not been conducted correctly, and more.
It is not a requirement that the requester should detail what they believe is wrong with the response received but the original member of staff may have overlooked some issues surrounding the request, or may have been over cautious.
There is no official time that a public authority has to complete an internal review in, this can cause long delays. However the regulator says that it should be completed within an extra 20 working days, and in exception circumstances no-more than an additional 40 working days.
It is not uncommon for requests to be overturned by a senior member of staff when an internal review has been asked for.
Stage 2: The Commissioner
If a requester is not pleased with the response of an internal review they are able to complain to the Information Commissioner’s Office, which is responsible for the ‘enforcement’ of the Freedom of Information Act.
In most cases the ICO will not look at a complaint before it has been internally reviewed by the initial public authority. However, in undefined exceptional circumstances the Information Commissioner’s Office will allow a complaint to be made directly to it without an internal review being conducted.
When making a complaint to the ICO it takes a lot more than sending an email to ask for an internal review. A requester has to use the ICO’s Complaints Form.
Along with the complaints form, which asks about the public authority, reasons for a complaint, reference number, personal details and more, the requester has to provide copies of all the correspondence they had with the public authority about the request.
Complaints should try to deal why a request has been handled wrongly by the authority.
If the complaint is deemed to be a valid one by the ICO, which includes all of the above steps, then, in most cases, it has an obligation (under Section 50) to issue a Decision Notice about the complaint. A decision notice can tell a public authority to disclose the information or whether the exemptions the public authority relied upon were relied upon correctly.
The ICO attempts to resolve all complaints made to it within six months. In 10 years of the FOI Act the ICO has issued more than 6,500 Decision Notices these are incredibly useful for seeing if an authority has answered an FOI request correctly. Decision notices can be searched here.
Once the form is complete it has to be emailed to the ICO: email@example.com
Stage 3: Information Tribunal
Both public authorities and requesters can complain to the First Tier Tribunal (FTT) if they believe that the ICO has made a mistake in in its Decision Notice. This error can either be on a point of the law, or on the balancing of the public interest test.
The Upper Tier Tribunal, which can be appealed to above the FTT does not accept applications on public interest issues and can only make decisions on the application of the law. If a case is particularly complex it is possible to bypass the FTT.
Applications for a case to be heard at a tribunal must be completed within 28 days of the previous decision.
Both types of tribunals can be heard either on paper or as an oral hearing. The majority of requesters who appeal to the tribunals represent themselves. However, the ICO is also able to represent itself at a tribunal when its decision is being challenged.
Therefore if a public authority is challenging an ICO Decision Notice the ICO is likely to provide a lawyer as a first respondent and the requester will be able to present their arguments as a second respondent.
The following links provide useful information and forms for appealing to the Tribunals.
- Advice from the Ministry of Justice about making an appeal
- Application form
- Guidance on completing an application for the FTT
- Guidance on appealing to the Upper Tribunal
Stage 4: More courts
If a request passes through both the First Tier Tribunal and the Upper Tribunal it is possible to appeal this to higher courts. These include the Court of Appeal, Supreme Court and the European Court.
More in this guide:
The following pages give more information about the FOI Act and the rights of a requester.