What if the applicant is unhappy with the response?
Applicants may be unhappy with the treatment they have received if, for example:
- their application was not dealt with within the 20 working days time-limit
- they did not receive all of the information requested
- they feel that exemptions have been wrongly applied
- they feel that a fee has been wrongly charged
Internal reviews
Part VI of the Section 45 Code of Practice requires public authorities to have a process in place to ensure that applicants are able to ask a public authority for an internal review if they are not content with the public authority's decision on release. This is the first review stage for applicants.
If you receive a complaint from a dissatisfied applicant you must:
- contact your freedom of information specialist
- confirm to the applicant that you have received their complaint and indicate to them when they should expect a response
It is important to be aware that the internal review stage is an opportunity to consider a case completely afresh. The review stage may also be a trigger for the involvement of senior officials, ministers, or the Clearing House for the first time, depending on the issues which arise from the request.
Who conducts them?
A person who was not party to the original decision on whether to release information may conduct an internal review.
Where ministers have made a final decision on releasing information or applying exemptions, ministers should review their decision in light of the complaint from the applicant.
How is it to be conducted?
An internal review must be a fair and impartial review of decisions made during the original consideration of whether to release information.
All internal reviews must consider the information released against the information requested and make a full review of the papers associated with the original application.
It is best practice that the internal reviewer discusses the decisions made with the staff member, or members, who dealt with the original application in order to build a full picture as to how decisions were made.
After concluding the internal review, the reviewer should discuss their conclusions with the departmental freedom of information specialist in order to ensure that any internal processes, which may need to be altered, are fully reviewed.
The applicant must be fully informed of the outcome of the internal review.
It is important that full records are kept on the progress of the review and any outcomes as a result of the review. This will assist in any further investigations by the Information Commissioner.
What are the timescales?
Internal reviews have to be completed in a reasonable timescale. As a matter of best practice it is recommended that:
- simple reviews should aim to be dealt with within 20 working days of receiving the complaint
- complex reviews - in particular where it is necessary to reconsider the public interest test - should aim to be dealt with within six weeks of receiving the complaint.
The Information Commissioner's Office advises that most internal reviews should be completed within 20 working days, and that only exceptional cases should take longer than this. The ICO considers that no case should take longer than 40 working days (see the ICO freedom of information guidance - particularly 'Good Practice Guidance 5: Time limits on carrying out internal reviews').
If it becomes clear at any stage of the internal review that you will not be able to meet the deadline you advised the applicant, you should ensure that the applicant is kept fully informed. You should also set a secondary deadline by which you will respond and make every effort to ensure that this is kept to.
If you consider that an internal review may exceed the set deadline you should ensure that you keep your freedom of information specialist aware.
A different result for the applicant?
An internal review can have two outcomes:
- the original decision is reversed
- the original decision is upheld.
Where the original decision is reversed the applicant must be told, and be made aware of when they can expect the information originally requested to be provided to them.
Where the original request is upheld, and the internal review finds in favour of the department, the applicant must be made aware of their further rights of appeal to the Information Commissioner's Office. You must also ensure that full contact details for the Information Commissioner's Office are provided to the applicant.
Irrespective of the outcome of the internal review, you must ensure that the final outcome of the review is recorded.
The Information Commissioner's Office and the Information Tribunal
The Information Commissioner's Office is an independent public body set up to promote access to official information and protect personal information by promoting good practice, ruling on eligible complaints, providing information to individuals and organisations, and taking appropriate action when the law is broken.
The Information Commissioner enforces and oversees the Data Protection Act, the Freedom of Information Act, the Environmental Information Regulations, and the Privacy and Electronic Communications Regulations.
The Information Commissioner may either affirm a public authority's decision on access to information under the Freedom of Information Act or require further action to be taken to comply with the Act. Any such requirement will be set out in a Decision Notice or an Enforcement Notice. If a public authority fails to comply with a Notice, the Commissioner may certify failure to the High Court (or the Court of Session in Scotland) and the court will deal with the authority as if it had committed a contempt of court. However, both the complainant and the public authority also have a right to appeal against the Commissioner's decisions. The appeal is to the Information Tribunal and thereafter, on a point of law only, to the courts.