How to appeal to the First-Tier Tribunal (Information Rights)
If you disagree with a decision made by the Information Commissioner, you can appeal that decision to the First-Tier Tribunal (Information Rights) - known to its friends as the "Information Tribunal".
Here's what you need to know:
- The opinion of the Information Commissioner must be expressed in a formal document called a Decision Notice before you can appeal it to the Tribunal.
- Sometimes during the course of an investigation, the ICO will let you know that they intend to decide against you, and ask if you'd like to withdraw your complaint. If you think you might want to appeal their decision, you need to answer 'no' to this, and request a Decision Notice.
- Useful resources on the Tribunal website include the Guidance for Unrepresented Parties (in other words, instructions and information for people applying to the Tribunal who don't have a lawyer representing them).
- Most of the people who appeal decisions to the Tribunal are not represented by a lawyer - the Tribunal staff are used to this, and are very helpful to appellents (if you're making the appeal, then you're the 'appellant').
- Although the ICO and the public authority will probably be represented by a lawyer, this doesn't mean they're more likely to win - the Tribunal takes into account that you're not a lawyer, and can't be expected to know the law like one. Unrepresented appellants frequently win cases before the Tribunal.
- To file your appeal, complete the Notice of Appeal form, on the Tribunal's website at How to Appeal, and send it to the Tribunal. There are some notes to help you complete the form.
- There is no fee for filing an appeal - it's free.
- You can't be charged the other side's legal costs, even if you lose the case - unless you behave unreasonably. As long as you have a genuine purpose for your appeal (i.e. you're not just doing it to be annoying), and you behave courteously to the Tribunal and the other parties, then you should be fine.
- Most appeals are 'on the papers', which means both sides send in written arguments and then the Tribunal decides (rather than hearing the case in person with lots of standing up and shouting 'Objection' like in Perry Mason). This probably benefits you, because as a non-lawyer you can take your time to do some research and think about things if everything's done in writing.
- The form for submitting your appeal is very straightforward - the only tricky part is the 'Grounds for Appeal'.
- This is where you put your reasons why you think that the Information Commissioner's decision was wrong.
- It's worth putting some thought into this; the best way to find out what 'grounds of appeal' you might have is to look at the sections on this website concerned with the exemption which has been applied. (see an example 'grounds for appeal')
- For example, some exemptions are 'qualified exemptions', which means that they take into account the public interest in the disclosure of the information. ('Public interest' means reasons why it's in the interest of the general public - i.e. why it would work to their favour - to have the information disclosed). So for these exemptions you could argue that there is a public interest that the Commissioner hasn't considered, or one that's more important than the Commissioner thought it was.
- For most exemptions, there's a particular set of facts which need to be considered by the ICO when they're making their decision. These are set out in the ICO's guidance and Lines To Take - all linked from this site. So read those and, if the ICO haven't followed them, then you have some possible grounds of appeal right there.
- You don't have to go into a whole lot of detail in the 'grounds of appeal' - it's just meant to be a summary. Later on you get the opportunity to set out your argument in more detail, and present evidence to support it.
- You must send the Notice of Appeal to the Tribunal within 28 days of receiving the decision notice. If you don't, they'll reject it, unless you've got a really good excuse.
- Once the Tribunal receives the Notice of Appeal, they'll acknowledge it, and ask you to wait 6 to 8 weeks for the ICO to respond.
- Next, the ICO lawyers file their Response. This means they tell the Tribunal, in lawyerly language, that they think their Decision Notice was like, totally rad, dude, and that your grounds of appeal totally suck. They'll express all this in really confident language; don't let this intimidate you - take it with a pinch of salt (as the Tribunal will).
- After that, you can respond to their response if you like - I reckon it's only worth doing this if they're got something major wrong, in which case you can point it out gleefully. If they've asked for your appeal to be 'struck out' (which means deleted, stopped in its tracks) then you might want to respond saying why you think that it shouldn't be.
- If you screwed up things up writing the Grounds of Appeal then this is your chance to explain again - and hopefully more clearly - why the ICO was wrong and their decision should be reversed.
- Then after some more waiting, a judge from the Tribunal will issue Directions. These are instructions for you, and the ICO, to follow. The public authority will probably be brought into the case at this point - this means they also get the chance to have their say.
- In the Directions will be the deadline by which you have to send them your 'submissions' (that means your written argument). You must pay attention to this deadline. If you don't meet it then your appeal will likely be thrown out (sometimes public authorities lose these cases just because they don't get the paperwork sent in in time - so you might just win by default!).
- Then you write your Submissions - that means your detailed argument about why the ICO was wrong - and you send it to the Tribunal, making sure it gets there by the deadline.
- Express yourself as clearly as you can.
- Be polite and professional - remember that the ICO and the Tribunal are like the referee and the fourth official (to use a footballing analogy), so it's in your interest to be courteous.
- You don't have to stick to the arguments you sent them in your Grounds of Appeal - you can come up with new ones at this stage, and you can drop some of the old ones if you've decided the ICO have a point and they're not very good.
- If you want to include evidence - like maybe some documents that prove there is a public interest, or something that shows why the Decision Notice was wrong - then you can do that. You bundle them together as one document, give them page numbers and that's your 'Appellant's Bundle'. You send it to the Tribunal with your submissions. If you want to refer to it from your submissions, then do it by page number so that the people on the Tribunal can easily find what page you're on about.
- If, in your argument, you're referring to other legal cases (like maybe previous decisions of the ICO or the Tribunal) then bundle up those cases together and send them to the Tribunal too.
- The Tribunal can only decide on things which are to do with FOIA or EIR - if you're annoyed with the public authority for some other reason (they've been rude to you, or whatever) then the Tribunal isn't the right place to bring that complaint.
- After you've sent in your submissions then the ICO and the public authority get the chance to send in theirs, and then you get a chance to respond to their submissions (if you want to).
- Then after some more delay the Tribunal will decide, and they'll let you know what their decision is.
So in summary, top tips are:
- Be polite and express yourself clearly. Get a friend to read stuff before you send it.
- If you have questions then ask the Tribunal - the admin staff are quite helpful.
- Don't be intimidated by the lawyers, quite often the Tribunal decides against them.