Anatomy of an appeal
When the Commissioner receives a valid application, a full investigation is undertaken. This will normally involve an assessment of whether the public authority in question has acted in accordance with the FOI Act when dealing with the applicant's information request.
The average time from the validation of an application to case closure for 2010 cases was 5.2 months. Below we provide further information on what happens at each stage after an appeal is made to the Commissioner.
Click on the tabs below for more information.
Average time: 0.5 months
The first stage in any appeal is to ensure that the application is valid – that is, that the Commissioner is legally able to begin the investigation of the case.
Before going on to investigate a case, the Commissioner must check, for example, that the appeal relates to an organisation covered by FOI legislation; and that the applicant has both made a valid request and asked the authority to review its response.
The Commissioner must also be certain that the appropriate timescales have been met, e.g. that the applicant has given the authority 20 working days to respond before making an application to the Commissioner.
The validation process will sometimes involve the Commissioner asking the applicant to provide further information or copies of correspondence, to ensure that he has all the information he needs to take the case forward.
Average time: 0.7 months
When an application has been validated, the Commissioner writes to the applicant to tell them so. At the same time, he also notifies the public authority in question, asking them, where relevant, to provide any information that has been withheld from the applicant.
Following the receipt of any relevant information, the case is allocated to an appropriate member of staff for investigation.
Average time: 3.4 months
The investigating officer undertakes the investigation. This involves considering all material relevant to the case and seeking submissions from the applicant and the public authority.
All relevant information is reviewed within the context of the FOI legislation, and the officer also considers any other legislation or legal precedent which may impact on the case, consulting colleagues where appropriate. If information has been withheld, the officer considers whether the exemption(s) have been applied correctly and, where relevant, considers where the public interest lies in relation to the information. In doing so, the officer assesses whether or not the public authority has fully complied with FOI law when dealing with the request.
The officer will meet regularly with a senior colleague to update them on progress and to discuss any matters arising. Where the case involves new points of law or significant public interest issues, they may also meet with the Commissioner and/or the Head of Enforcement.
Cases will occasionally be settled during the investigation, with the mutual agreement of both parties. At other times the information may be released, leading to the withdrawal of the appeal.
In most cases, however, the officer will, at the end of the investigation, draft a decision setting out his or her conclusions in relation to the case.
Average time: 1.1 months
The draft decision is then forwarded to a senior member of staff for review and consideration.
If further investigation is required, the case is returned to the officer, with instruction provided on the nature of the work to be carried out. Following the conclusion of this work, the draft decision is resubmitted.
When the senior member of staff considers that the investigation has concluded, the decision is, in most cases, passed to either the Commissioner or Head of Enforcement for final review. Unless they require further investigation to be carried out, the decision will be approved and prepared for release.
A copy of the decision is sent to both the applicant and the public authority, notifying them of the Commissioner's conclusions in relation to the case.
Where the Commissioner finds that a public authority has failed to meet its obligations under FOI, the decision will set out the steps that he requires it to take. Where information has been inappropriately withheld, the Commissioner will normally instruct the authority to release it to the applicant.
In most cases, a copy of the Commissioner's decision is published on his website within one week.
Both the applicant and the public authority have the right to appeal the Commissioner's decision to the Court of Session.
Any such appeal can be made on a point of law only, and must be made within 42 days of the decision notice being issued.