LTT191 - Internal review under the EIR - issuing a DN requiring an internal review
- FOI/EIR: EIR
- Section/Regulation: reg 11
- Issue: Internal review under the EIR - issuing a DN requiring an internal review
- Related Lines to Take: LTT187, LTT190
- Related Documents: EIR Code of Practice
- Source: SW, Decision Notice
- Details: FER0311883
- Contact: SW
- Date: 18/01/2011
- Policy Reference: LTT191
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
Unlike the FOIA, the EIR contain a legal obligation on a public authority to provide an internal review. Where an authority has failed to provide an internal review in relation to a request which falls to be considered under the EIR, the Commissioner will issue a decision notice requiring it to do so.
In order to trigger the obligation in regulation 11, the requester must express their dissatisfaction in writing within 40 working days of becoming aware of grounds for complaint.
Regulation 11 of the EIR states that a public authority must reconsider its decision in the light of any representations made by the applicant. The time limit for this review is 40 working days. The authority is also obliged by regulation 14(5) to notify the applicant of this opportunity in its refusal notice.
This means that there is a legal obligation to provide an internal review under the EIR.
Where the authority has failed to comply with this requirement, the normal approach will now be to issue a short DN finding a breach of reg 11 and ordering steps to carry out an internal review (see for example FER0311883).
However, this approach should not be used if it would lead to undue delay for the complainant in the particular case. Likewise, it may not be appropriate to use this approach for hybrid FOIA / EIR cases, as the same legal obligation to carry out an internal review does not apply under FOIA. For advice on how best to proceed in such cases you should consult with your group manager (or if you do not have a group manager ask for advice from another signatory via a CR07 form).
If the authority has never considered the request under the EIR, the appropriate action is to require the authority to reconsider it under the correct legislation (following LTT190)
Accepting complaints without internal review
The Commissioner’s normal practice is not to accept a complaint if the requester has not exhausted any internal review procedure offered by the authority. Therefore this line applies only in those cases where the authority has stated that it does not offer an internal review, or has refused or failed to carry out a reconsideration in spite of being asked by the requester.
Timing of representations
There is a limitation on the obligation to provide an internal review under regulation 11, which is that it applies only if the requester has made representations to the authority in writing and within 40 working days of "the date on which the applicant believes that the authority has failed to comply with" a requirement of the EIR.
The phrase "the date on which the applicant believes", does not lend itself to a blanket approach. It suggests that the representations do not necessarily need to be made within 40 days of the refusal, but that the right to make representations is nevertheless not unlimited. Note also that reg 11(2) refers to “the requirement” about which the requester is making representations, rather than any breach of the Regs; the requester is not required to make their representations as soon as they are aware that the authority has exceeded the time limits for response.
In most cases, the requester's representations will be in response to a refusal notice issued by the authority. The Commissioner would therefore expect that such representations would usually need to be made within 40 working days of the refusal. This should give the requester sufficient time to assess the response made (including any information disclosed) and determine whether they are satisfied. However there may be some circumstances in which we might accept that representations could be made later than this. More details about possible scenarios can be found below, if this is an issue in your case you may wish to seek policy or signatory advice.
The following are circumstances in which we might consider that the authority had a duty to reconsider the request, even though the requester's representations were not made within 40 working days of the authority's refusal
1. Where there was some ambiguity about whether the authority had issued a final refusal or whether it was still considering the request.
- It would not be reasonable to make the requester's right to make representations dependent on the authority's issuing a timely and comprehensive refusal notice. A requester cannot be expected to make representations about non-disclosure or the application of exceptions if they reasonably believe that the authority has not yet come to a final conclusion about these matters. In these cases we can say that the requester did not "believe" a breach had taken place until later. There is a parallel here with the Commissioner's approach to undue delay which refers to the time which has elapsed since the authority’s last “meaningful contact” with the requester.
- The code of practice under reg 16 of the EIR states, as with the s45 code under the FOIA, that any written expression of dissatisfaction should be treated as a complaint. The representations do not need to be in any particular form, although they must be in writing (in contrast with the provision for verbal requests under the EIR) Therefore, if there has been further correspondence subsequent to the refusal, it is likely that the requester has in fact exercised their right under reg 11 even if it has not been recognised as such by the authority
2. Evidence that the authority has failed to comply has only emerged after the refusal, for example, it has become apparent that more information may be held
- This does not mean that the right to make representations remains “open” indefinitely, simply because the requester may at some point come to believe that the request has not been property handled. Rather, there must be some reason, other than a mere change of heart or reconsideration on the part of the requester, why they did not previously believe the authority to have mishandled the request but have subsequently come to think so.
- This is most likely to occur in cases where the authority's response is based on factual claims (rather than judgement) which the requester initially has no reason to challenge but later discovers to be false or open to question.
- We would envisage that this situation should be exceptional, and we should be careful to avoid eroding the 40-day time limit for making representations by allowing requesters to rely on this argument too often. If you are considering finding a breach of reg 11 or requiring the authority to carry out an internal review in such a scenario, seek advice from a senior signatory first.
3. Where the authority has failed to offer an internal review procedure, either by failing to notify the requester of their right to make representations or by specifying explicitly that no internal review is available.
- Reg 11 can be read as requiring an authority to have an internal review procedure for environmental information requests, and again it would be unfair to deprive the requester of their right to make representations by virtue of the authority’s failure to issue a compliant refusal notice. In this case there will also be a breach of reg 14(5) in that the authority has failed to include reference to the reg 11 right in its refusal notice.
Countering alternative interpretations of regulation 11
Reg 11 states:
- "Representations under paragraph (1) shall be made [...] no later than 40 working days after the date on which the applicant believes that the public authority has failed to comply with the requirement."
A public authority may argue that this should be read to mean "40 working days after the date on which the public authority has allegedly failed to comply with the requirement", rather than 40 working days after the date on which the requester comes to believe that such a failure has occurred.
The Commissioner accepts that both interpretations are possible. However, he considers that the interpretation given under "Further details" above is more plausible in practice for the following reasons:
- it is not possible to state that a failure to comply (other than with the time limit provisions) has occurred on a particular date; rather it has occurred because the authority has not yet complied
- If the authority has not responded at all, responds late, or considers the request under the wrong legislation, the requester may not initially be aware of a reason to complain. This could lead to them being deprived of their right to make representations because of delays on the part of the authority,
- The Commissioner reads the legislation purposively (in line with its origins in European law) The purpose is clearly to give the requester an opportunity to complain, and this should not be undermined by the actions of the authority. An authority which gives a full and clear refusal notice within the time for compliance will not be disadvantaged by this approach.