Freedom of Information: A Comparative Legal Survey - Federation of ...

Taken together this is a formidable list of broad, repetitive and in many cases simply unnecessary
exceptions.
Appeals
The RTI Law provides for three levels of appeal, fi rst within the public body which holds the information,
second to the Information Commissioner and then to a special Information Tribunal. Both of these latter
bodies were originally established under the Data Protection Act 1998 as, respectively, the Data Protection
Commissioner and the Data Protection Tribunal. The Commissioner is appointed by Her Majesty 301 and the
Tribunal consists of a chair and a number of deputy chairs appointed by the Lord Chancellor (effectively the
Minister of Justice) as well as a number of other members appointed by the Secretary of State. 302 Although
the appointments process does not provide strong structural guarantees for this, both are effectively
independent bodies in practice.
Section 45 provides for the publication by the Secretary of State of a code of practice dealing with various
matters including internal procedures for dealing with complaints relating to requests for information.
The 2004 Code of Practice does include detailed provisions on this in Part VI. Any written reply from an
applicant expressing dissatisfaction shall be treated as a formal complaint, whether or not it is technically
styled as such. It is up to each public body to set its own complaints procedure, but this shall be fair and
provide for a thorough and fresh review of the matter, where possible by someone senior to the original
decision-maker. Complaints shall be acknowledged and an indication of the time expected to be taken to
resolve them provided. Timelines shall be ‘reasonable’, although no specifi c limit is set. The complainant
shall always be informed of the outcome and, where a complaint is rejected, he or she shall be informed
of his or her right to appeal that decision. Where the complaint reveals a procedural failure, steps shall be
taken to ensure that it does not happen again.
Pursuant to section 50, the Information Commissioner must consider all complaints relating to the manner
in which requests have been dealt with under the Law unless the complainant has not exhausted any
internal complaints procedures, there has been excessive delay in lodging the complaint, or the complaint
appears frivolous. Upon receipt of a complaint, the Commissioner must issue a decision notice and, where
there has been a breach of any provision in Part I – including the obligation to disclose information, a failure
to disclose in the form requested or a failure properly to notify the applicant of reasons for any refusal to
disclose – this notice should direct the public body to take steps to rectify the problem.
The Commissioner has the power to require any public body to provide him or her with any information he
or she may require either pursuant to a complaint or for purposes of ensuring that the body has complied
with its obligations under the Law (section 51). The Commissioner may also require a public body to
take such steps as are necessary to comply with its obligations under the Law, even in the absence of a
complaint (section 52).
Where a public body fails to take the steps required of it by the Commissioner, he or she may notify the
courts of this fact and the courts may inquire into the matter and, if it is substantiated, deal with the body
as if it had committed a contempt of court (i.e. as if it were in breach of a court order) (section 54).
Either the applicant or the public body may appeal to the Tribunal against any decision or order of the
Information Commissioner. The Tribunal has the power to review decisions of the Commissioner on both
points of law and fact (sections 57-58). As noted above, the Tribunal has different powers in respect of
appeals against different ministerial certifi cates. Where the certifi cate states that information relates to
security bodies, the Tribunal has full powers of review on the merits and may quash the certifi cate if it fi nds
that the information is not in fact exempt. Regarding national security certifi cates, the Tribunal only has the
power to undertake judicial review, i.e. it may quash the certifi cate only if it holds that the Minister did not
have reasonable grounds for issuing it (section 60).
A further appeal lies to the courts from a decision of the Tribunal on points of law (section 59).
125