14 - Internal reviews and appeals

Summary

Introduction

FOI laws would be toothless if sending out a response was the end of the story. The ability of applicants to appeal decisions is a crucial aspect of the FOIA. It is inevitable that at times applicants disagree with the decisions made by public authorities. FOI officers are fallible, and do not always apply the law correctly. Very often the decision is out of their hands and more senior colleagues insist on a request being refused whatever they are advised.

It might seem twee, but complaints help organisations and their employees to learn, and FOI is no different from other areas of work in this respect. Whatever stage a complaint may reach there are lessons to learn from it. FOI officers may even be aided by the outcome of complaints. A critical ruling from the Infor - mation Commissioner or a court, while uncomfortable at the time, can assist in reinforcing messages that they have been trying to get across to colleagues for years.

The appeal process under the FOIA consists of several stages:

• an internal review

• an appeal to the Information Commissioner

• an appeal to the FTT (information rights)

• an appeal (on a point of law only) to the Upper Tribunal

• an appeal to the Court of Appeal

• an appeal to the Supreme Court.

A very small proportion of requests are taken even as far as the Information Commissioner. This chapter looks at how best to manage internal reviews and the role of the Information Commissioner before summarising the implications of appeal to the various further stages.

Internal review

The Information Commissioner does not have to consider any complaint made to her office where ‘the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45’. Thus it is in a public authority's interests to adopt its own complaints procedure so they get early warning of any complaints that might end up with the Commissioner, and a second opportunity to prevent that outcome. This stage of the appeal process is known as internal review in a FOIA context, and provides an opportunity for authorities to nip expensive appeal processes in the bud.