Review and appeals
The need for an independent review and appeal mechanism
5.1 The case for an independent review and appeals mechanism under the Freedom of Information Act is twofold. First, cases involving the disclosure of information are often complex and sometimes require fine judgements to be made on whether the public interest in disclosing information should or should not prevail over a competing public interest in withholding information. There is a clear need for an expert review body to exercise such judgements. Secondly, it is the right of appeal that will effectively guarantee and enforce people's right to know under the Freedom of Information Act.
5.2 The importance of independent review and appeal is recognised internationally through the provision of different types of appeals mechanisms, whether an Ombudsman, a tribunal or a specially designated Commissioner. Similarly, in this country, the Parliamentary Ombudsman[7] supervises the Code of Practice on Access to Government Information while the Data Protection Registrar enforces the requirements of personal privacy deriving from the Data Protection Act 1984.
5.3 We see independent review and appeal as essential to our Freedom of Information Act. We favour a mechanism which is readily available, freely accessible and quick to use, capable of resolving complaints in weeks not months. That is what we propose to create under the Act.
Review and appeals under the Code
5.4 Under the Code of Practice on Access to Government Information there is a two-stage appeals process. In the first instance a complainant can ask a government department to carry out an internal review of its decision not to disclose information. If the complainant remains dissatisfied, he or she can then ask the Parliamentary Ombudsman to conduct an investigation.
5.5 This system has worked relatively well. Internal review has led to further disclosure in over 30% of cases. The Parliamentary Ombudsman has proved effective in policing the Code and in resolving the relatively small number of complaints. He has received some 140 since the Code was introduced in 1994. Although the Parliamentary Ombudsman does not have the power to order disclosure, departments have invariably complied with his recommendations. The Government would like to pay tribute to successive Parliamentary Ombudsmen (Sir William Reid and Mr Michael Buckley) for their valuable work on the Code.
Review and appeals under the FOI Act
5.6 We propose to build on the Code's two-stage system of appeal. The internal review stage will be formalised and a new independent Information Commissioner will be given wide-ranging powers. The Commissioner will be able to challenge authorities which refuse to release records and information which are subject to the Act. The Commissioner will have the power to order disclosure.
5.7 We envisage that the Information Commissioner will fulfil a role similar to that performed by the Parliamentary Ombudsman under the Code. However, we intend to make the new Commissioner an independent office holder (like the Data Protection Registrar) rather than an officer accountable to Parliament (like the Parliamentary Ombudsman). We believe that an independent officer is the more appropriate model given the wide coverage of the Act which will include very large numbers of bodies (for example schools and local authorities) that are not directly accountable to Parliament. An independent office holder will be answerable to the courts for his or her decisions. In this way, the appeals system will be (and will be seen to be) independent and in particular not subject to any form of political override which might ultimately be used to resolve contentious cases in favour of the Government.
Stage 1: Internal Review
5.8 Internal review will be the first step in the FOI appeals process. It will provide a quick, low cost and simple mechanism for resolving many complaints. It should also ease the burden on the Information Commissioner, leaving him or her to concentrate on more complex cases. An internal review should be carried out by an official who was not involved in the initial decision and be completed within a specified timescale.
5.9 Generally, an internal review will be a precondition for making a complaint to the Information Commissioner. However, the Commissioner will have the discretion to accept a complaint which has not been the subject of an internal review, for example, where:
- a complaint concerns unreasonable delay in dealing with an initial request for information or in conducting the internal review itself;
- the public authority concerned is too small to have its own review procedure. Care will be taken to ensure that internal review procedures do not create an excessive burden for very small bodies.
Stage 2: Appeals to the Information Commissioner
5.10 The new Information Commissioner will have a key part to play in promoting, interpreting and enforcing the Freedom of Information Act. The Commissioner will not have any locus where the information concerned is not covered by the Act. The Commissioner's primary role will be to investigate complaints that a public authority has failed to comply with the requirements of the Act either by refusing to disclose information, or by taking an unreasonable time to respond to requests, or by imposing excessive charges for information. He or she will be expected to resolve such cases as quickly and informally as possible. In a similar vein, the Commissioner will also hear appeals relating to access to historic records.
5.11 In addition, we will require the Information Commissioner to:
- publish an annual report, and special reports where necessary, to Parliament on the operation of his or her function and the operation of the Act more generally;
- publish reports on the outcomes of investigations and issue best practice guidance on the interpretation of the Act; and
- promote greater general public awareness and understanding of the Act.
5.12 We are prepared to give the Information Commissioner wide-ranging powers to carry out these important functions effectively:
- the power to order disclosure of records and information which are subject to the Act. This is an essential guarantee of the Commissioner's role in ensuring that public authorities fulfil their duties under the Act. The Commissioner could require disclosure of whole records, or of part of them with sensitive material deleted, or of extracted information as appropriate;
- the right of access to any records within the scope of the Act and relevant to an investigation;
- the power to review and adjust individual charges or charging systems, or to waive a charge if disclosure is considered to be in the wider public interest. For example, the Commissioner might consider that there is a compelling public interest in disclosure which could go by default if the applicant could not afford to meet the charge being levied;
- the right to resolve disputes via mediation. Mediation should enable less complicated appeals to be resolved quickly, at minimum cost, without the need for a formal enquiry.
5.13 In line with the Parliamentary Ombudsman's enforcement powers, the Information Commissioner will also be allowed to report any failure by a public authority to comply with a disclosure order, or to supply records relevant to an investigation, to the court. Such cases would be treated by the court in the same way as a contempt of court.
5.14 There have been a number of cases overseas where public officials have deliberately altered, destroyed or withheld records from review. Although such cases are rare, and while there is no evidence of similar abuses having occurred under the Code, we believe that the public's right to know established under the Act should be properly safeguarded. We will therefore allow the Information Commissioner to apply for a warrant to enter and search premises and examine and remove records where he or she suspects that records that are relevant to an investigation are being withheld. We also intend to create a new criminal offence for the wilful or reckless destruction, alteration or withholding of records relevant to an investigation of the Information Commissioner.
5.15 There will be occasions, involving requests for personal information in particular, when FOI appeals overlap with the jurisdiction of the Data Protection Registrar. In such cases the Information Commissioner will need to consult the Data Protection Registrar (see paragraphs 4.12 and 4.13). Experience under the Code also shows that complaints about access to information and about maladministration can often be linked - for example, a complainant's case may be that he or she has been denied access to information which would be relevant in determining the degree of fault of the public authority concerned. We will therefore encourage the Information Commissioner to develop close working relationships with the various public sector Ombudsmen.
Right of appeal beyond the Information Commissioner
5.16 We do not propose that there should be a right of appeal to the courts. However, a disclosure order of the Information Commissioner (or a decision not to grant an order) would be subject to judicial review.[8] We have decided to take this approach because we believe it to be in the best interests of the FOI applicant. Overseas experience shows that where appeals are allowed to the courts, a public authority which is reluctant to disclose information will often seek leave to appeal simply to delay the implementation of a decision. The cost of making an appeal to the courts would also favour the public authority over the individual applicant.
5.17 Our proposed review and appeals system under FOI is set out diagrammatically at Annex E.
Ministerial certificates and vetoes
5.18 In a number of countries with FOI legislation, Ministers are given the discretion to override the disclosure powers of the appeals body. For example, they can certify that particular documents lie outside the appeals process or they can veto a finding of the relevant Ombudsman. We have considered this possibility, but decided against it, believing that a government veto would undermine the authority of the Information Commissioner and erode public confidence in the Act. We believe that our proposals strike the right balance between the sometime competing public interests in disclosing and withholding information.
Third party rights of appeal
5.19 Public authorities hold a great deal of information concerning individuals, companies and other organisations (referred to collectively as "third parties") which will be potentially releasable under the Act. We would welcome views on whether a mechanism should be established to allow third parties to appeal against decisions to release information which they believe would cause "substantial harm" to their interests and, if so, what structure the mechanism should have. The need for such appeals is most likely to arise in the areas of personal privacy, commercial confidentiality, or when the information requested was supplied in confidence by the third party.
[7]The Parliamentary Ombudsman also fulfils the post of Health Service Commissioner (HSC), who is responsible for policing the Code of Practice on Openness in the NHS, and its Scottish and Welsh equivalents.
[8]The question of whether the Commissioner has properly excercised his or her powers in reaching a reasonable decision. This is in contrast to a right of appeal to the courts on the substantive question of whether the decision was the right one or not.
|
