The Scottish Information Commissioner (SIC) has recently published their 2021-22 report (which can be viewed here) noting a  significant increase in FOI appeals within the past year. The appeals received during 2021-22 rose by 29% on the previous year, with an overall total of 626 appeals received throughout the year. So how exactly does the appeal process work?

The Appeal Process

When individuals are unsatisfied with the response they receive from a public authority regarding an FOI request, they have the right to have that response reviewed by the authority. The request for a review must be made no later than 40 working days after the date that a response is sent from the public authority, or if no response is provided to the initial request within 40 working days of the legal deadline for responding.

Read more: What Obligations do RSLs have under Freedom of Information Laws?

Where an individual is still dissatisfied after the review, they can appeal to the SIC. The appeal must be made within six months of when they received (or should have received) the review response and it must be ‘valid’. The SIC describes a valid appeal as one where:

• The applicant has been through the authority’s review procedure
• Provided the SIC with the information needed to investigate the complaint and;
• Have told the SIC what they are unhappy with

The SIC will only investigate how the authority handled the applicant’s information requested in line with the relevant legislation: the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (EIRs). The SIC will examine whether the authority:

• Was entitled to refuse to disclose information
• Gave all the information falling within the scope of the request
• Was right to state that they did not hold the information requested
• Charged the correct fee for providing the information; or
• Did not have to comply with the request because it cost too much, was vexatious or was a repeated request

The SIC will give public authorities the opportunity to comment on how the request was handled and take any comments into account when handling the appeal. The SIC also has the ability to require public authorities to provide certain information about the request.

Read more: The Role of the Data Protection Officer in RSLs

Following an appeal, the SIC can order the information to be disclosed if it finds an authority has wrongly withheld information; in 2021-2022, 55% of the SIC’s decisions found wholly or partially in the requester’s favour.

What Can RSLs Do to Avoid Requests Reaching the Appeal Stage?

RSLs should seek clarification from any applicant where it is not immediately clear what the nature of the request is (though you do not have the right to ask the applicant the purpose of their request). This will ensure the RSL knows what information the applicant is asking to disclose and can provide better assistance.

The 2021-22 report showed that 18% of the SIC’s valid appeals concerned an authority’s failure to respond. RSLs should be aware of the statutory 20-working-day deadline and have procedures in place to meet this deadline. They should also train staff to understand what may constitute an FOI request so they know what to look out for, particularly as a valid request does not need to say that it is a Freedom of Information request or an Environmental Information request.

RSLs should ensure they know of and are applying any relevant exemptions properly. There are a number of exemptions which permit RSLs not to disclose information. This includes information that is already accessible, or where a request is repeated or vexatious; others apply because of the type or nature of information requested.

You should not treat a review as the same as the first request. Reviews give RSLs a chance to re-examine the case and they should, where possible, be carried out by staff who weren’t involved in the original decision. This allows a pair of fresh eyes to review the request, determine whether any additional information should be provided, or whether the reasons given for not disclosing the information are adequate.

RSLs should be aware of what is expected of them under the 2019 Order (a more in-depth article on what obligations RSLs have under the Order is available here)

How are RSLs Dealing with FOI Requests?

Although we have seen an increase in the number of appeals, the SIC’s report has shown that public authorities in Scotland are generally dealing with FOI requests well, with 86% of requests being answered within the 20-working-day time limit and 73% leading to the disclosure of some or all of the information requested.

Read more: Responding to a Freedom of Information Request

Scottish Information Commissioner, Daren Fitzhenry, stated that: “while appeals to me have increased, it’s important to remember these account for less than 1 per cent of the total FOI requests made in Scotland each year, meaning that most people who use their FOI rights don’t have to think about an appeal.”

Therefore, despite the increase in appeals, there are positives to be taken away from the report and the progress public authorities are making in responding to FOI requests.

If you, or anyone in your organisation, requires assistance with Freedom of Information or Environmental Information Regulations please contact our team.