- If you are dissatisfied by any response you receive as a result of your FOI request to a public authority, you have the right to complain.
- Some examples of what you can complain about:
- the level of fees requested - either incorrectly applied, or the basis for calculation was incorrect
- that the recorded information you've requested does exist and the authority claims otherwise
- that any exemptions used to withhold information were incorrectly applied
- that your request was unfairly deemed to be vexatious or repeated
- that you didn't make a valid FOI or EIR request (eg if you didn't provide your name or state what you wanted clearly enough)
- that they didn't reply in the allowed time
- that they didn't provide "advice or assistance" if you needed it
- that they didn't take any of your reasonable preferences into account for how you wanted the information to be provided to you
- that they provided the wrong information, or information that was not at the level of detail requested.
- that they didn't provide the requested information from their publication scheme
- The sections below show how to complain under the various jurisdictions - the basic process is to:
- 1) reply to the authority, saying that you are dissatisfied by their response,
- 2) set out your reasons why you are dissatisfied,
- 3) and ask them to review their response.
- If they don't change their minds after the review, then you have the right to appeal, either to the Information Commissioner (ICO) or the Scottish Information Commissioner (SIC). You should do this within 20 days of the result of the review.
- Be warned that internal reviews can take a long time in practice, although they should ideally be within 20 working days - see below for details.
- NB: If you want to make a complaint to the ICO or SIC, they will usually insist you have exhausted the complaints process with the public authority.
Freedom of Information Act 2000 (England, Wales & NI)
The relevant legislation is contained within the "Part VI of the Secretary of State's Section 45 Code of Practice". Important quotes are:
- "36. Each public authority should have a procedure in place for dealing with complaints both in relation to its handling of requests for information."
- "38. Any written reply from the applicant (including one transmitted by electronic means) expressing dissatisfaction with an authority's response to a request for information should be treated as a complaint"
- "39. The complaints procedure should provide a fair and thorough review of handling issues and of decisions taken pursuant to the Act"
Bear in mind that whilst the MoJ describes the complaints procedure of Part VI of the Code of Practice as an Internal Review, the text of the Code of Practice itself does not mention these words - some public authorities incorrectly only allow refusals under Section 17 of the FOIA to be reviewed, often by an "appeals panel".
The ICO recommend that reviews should be carried out within 20 working days - see their "Good Practice Guidance 5 - Time limits on carrying out internal reviews".
There are very few circumstances where you can complain directly to the ICO. These are:
- Where the public authority does not have a complaints process
- For the BBC - for appeals against them applying the journalism, art or literature "derogation" - you should complain direct to the ICO. Background information on this
- Many public authorities won't provide an appeals process for requests they consider to be vexatious.
Also see the ICO's When & How to Complain leaflet.
ICO's Lines to take on Section 45
|Relevant Lines to Take
Freedom of Information (Scotland) Act 2000
- Official guidance from the Scottish Information Commissioner
- Time limits for requesting an internal review - 40 working days after:
- the end of the period for responding to your request (if the authority did not reply to your request), or
- the date the authority responded, or
- the date the authority sent you a fees notice, or
- the date the authority sent you a refusal notice or a notice saying that it does not have the information
- The review should take no longer than 20 working days.
- The authority does not have to provide a review when a vexatious or repeated request had been made.
- The guidelines for Internal Reviews are based on the Scottish Ministers Section 60 Code of Practice
Environmental Information Regulations
- Regulation 16 of the Environmental Information Regulations (EIRs) provides for the issue of a Code of Practice by the Secretary of State - section XII covers the review/complaints procedure
- Paragraph 58 - "Each public authority must have a review procedure in place. This procedure may be used by any person who considers that their request has not been properly handled or who are otherwise dissatisfied with the outcome of the consideration of their request and where the issue is such that it cannot be resolved informally in discussion with the official dealing with the request."
- Paragraph 60 - "Any written reply from the applicant ... expressing dissatisfaction ... should be treated as a complaint, as should any written communication from a person who perceives the authority is not complying with its publication scheme where it has one."
- Paragraph 63 - "Authorities must consider each complaint ... and respond to the complainant within 40 working days"
- For the Environmental Information Regulations (Scotland) the Code of Practice can be found here
- The wording is very similar to the England/Wales/N.I. Regulations, however it stipulates a response within 20 working days, and to provide updates and reasons for any delay beyond 20 days.