Appeals against refusal of information requests

In some countries, the FoI laws provide for the administrative body which refused your information request to revise its own decision – effectively, to change its mind. You may thus be able to obtain the information you need without the need for further appeals.

By appealing again to the same body, you may be able to signal that you are serious about defending your rights.  This can sometimes result in a change of mind.

EXAMPLE: the UK has a system of “internal appeal” for FoI decisions. Under the Freedom of Information Act (FOIA), a person requesting information who is dissatisfied with the response is able to ask the public authority concerned for an ‘internal review’. This review may or may not be acted upon. In 2015, 6.3% of all Freedom of Information requests (that is more than 1 in 16) were taken to internal review. This marked a significant increase from 2010 when 3.9% of requests (nearly one in 25) were appealed in this way.

When a decision is referred to as an “administrative decision”, it means that it was made by a public authority. This can sometimes mean that it is hard to know which state body made the decision, as so you may struggle to identify who to appeal to. If that happens, then check the decision-making rules of the public authority to which you made the information request.  Those rules should outline the procedure for challenging a refusal of an information request, and should identify the body to which any appeal should be made: either to a more senior administrative body or (preferably) to an ombudsman or information commissioner.

In the case of a failure to provide (or the provision of incomplete) information, you will generally be able to pursue an appeal to a more senior administrative body or (preferably) to an “ombudsman” or information commissioner. The role of the ombudsman/commissioner is to investigate what happened and to issue a recommendation or an opinion with which the requested body should comply.

In many countries the request for internal review is required before appealing to the Information Commissioner, Ombudsman, or Courts. Sometimes however, you can appeal directly to the Information Commissioner or Ombudsman.

For more information on appeals within OSCE countries, see the Appeals Mechanism table compiled by LegalLeaks. This shows that some 16 countries in the OSCE region have a specialised oversight body. In the UK for instance, if the requester is still dissatisfied after an internal review is carried out, they can appeal to the Information Commissioner’s Office (ICO). Independent research shows that the number of ICO appeals has increased from 0.52% in 2010 to 0.90% in 2015. This means that a total of 14.4% of internal reviews (a little more than one in seven) were taken to the ICO in 2015, compared to 13.2% in 2010 (a little more than one in eight) in 2010.

An ombudsman is an official who investigates people’s complaints against companies or the government. They should be independent, free of charge and impartial – therefore they should have no link to the administrative body whose decision you are contesting. This degree of detachment enables the ombudsman will act as a neutral arbitrator and make an unbiased decision concerning your claim (see, for example, this UK description of the role).

Using an ombudsman should mean that you can avoid having to go to court. This can save you the costs that come with litigation can also save you from having to go to court. This can help you obtain a faster response to your complaint whilst avoiding the cost of litigation.

It is important to note however that the role of the ombudsman is limited.

A first limitation is that the decisions made by ombudsmen are not legally binding.

• In the private sector, ombudsmen usually have the power to make recommendations which are binding on the bodies in their jurisdiction. However, these decisions can be undone if they are successfully challenged in court.
• In the public sector, the decisions of the ombudsmen are not legally binding but simply recommendations. This means that they do not have to be respected by the administrative body whose decision you are challenging.

A second limitation in appealing to an ombudsman is that in many countries, ombudsmen are unable to intervene in certain areas. This means that the ombudsman would be unable to hear your case if your request for information was related to an area that is restricted in your country.

In many countries, if you are unsatisfied with the outcome of your appeal, the next step is to appeal to the courts. This is particularly the case in countries that do not have an Information Commission or Ombudsman. If you wish to make an administrative appeal, you should appeal to your regional or administrative court. Often a higher court appeal will also be possible.

If none of the above appeal mechanisms answer your request, there remains the possibility of appealing to higher courts, such as the European Court of Human Rights for cases within the countries that have signed the European Convention of Human Rights.

The downside of these types of appeals is that they take a long time. However, they remain worth considering as a ruling by such high courts are binding on administrative bodies. Moreover, an appeal in itself can sway political decision-making, even before the court has reached its final decision.

Usually there are deadlines set by law within which you have to file your appeal after you have or should have received a refusal or received an incomplete answer. The timelines for the ombudsman procedures are sometimes less strict.

You can raise any issue in your appeal regarding the difference between what you requested and what you received. For example, you can complain that:

• You didn’t receive any reply at all
  You received a reply, but it was a refusal
• You received a reply, but it was a refusal without giving sufficient reasons why you cannot obtain the information
• You received a reply, it was a partial refusal, you couldn’t get all the information you wanted to obtain
• You received the information you needed, but the requested body charges a fee that you are not willing to pay
• You received the information you requested, but it was not in a useful format.

A lot depends on the legal system of the country where you filed your information request. Normally you won’t need a lawyer to turn to the ombudsman or to the Information Commission(er), either to file an administrative appeal or to file a court appeal.

However, even if you don’t need one, a lawyer or somebody experienced in the field of freedom of information can be very helpful when you formulate your appeal. They can help highlight the weaknesses of the decision you want to appeal and may find additional arguments.

They can also identify formal or procedural errors you might have missed which may prove that the refusal of your request was contrary to the law. Legal representation may also be mandatory if you further appeal to higher level courts.

Taking a case to the ombudsman or the Information Commission(er) is generally free of charge.

For an administrative appeal or for a court appeal, the administrative agency or the court concerned may charge a fee. You can find out before the appeal how much these fees are as they are defined by law.

Depending on the legal system, fee waivers are often available based either on the type of case (right of access to information) or on the status of the person appealing (low income individuals, non-profit organisations, etc).

In some countries, not only may the court charge a fee but you may have to pay the legal costs of the opponent’s lawyer if you lose the case. If you have a lawyer s/he will be able to give an estimate of how much this will cost.

(a)  Read the decision from the public authority to which you made the request

Administrative bodies are often required, after a refusal for a request for Information, to provide contact details, instructions and information on how you can pursue an appeal. If no such information is provided, it can sometimes be found by searching on government websites. It is important that you submit your appeal to the appropriate body to ensure that it is received and addressed as soon as possible.

(b) Follow all appeal instructions

It is crucial that you follow closely any appeal instructions that you have been given. A failure to do so may result in your appeal not being considered.

It is also important that you comply with any rules or timeframes that may apply in your country. Check in particular for

• any deadlines that may exist for appeal applications, and
• any formatting requirement for the appeal document.

This will help you know when you will need to submit and present your appeal and when you can expect a response.

(c)  Writing a letter of appeal

If you are writing a letter (or an email) to the appeal body, make sure you familiarise yourself with all the court rules and instructions. Be sure to follow these instructions, including for content, format, formalities and length.

Your appeal letter should be designed to bring out your argument in a crisp and cogent way. First, you should read through carefully the rejection of your FOI request, in order to identify the reasons for the denial. Your argument should aim to contest these reasons.

Start the letter by using the correct formal name for the judge or individual who will be hearing your appeal. You can research how they should be addressed in your country.

Continue your letter by making it clear which decision you are appealing against. Provide a concise summary of your initial FOI and a summary of the response you received. Make sure you attach any relevant correspondence from your initial request up until the notification of refusal if you received one, including letters and emails.

You can then make your policy and legal arguments for why your request should be accepted and specify outcome that you want. Make sure you explain why you are entitled to what you are requesting.

Finally, provide your current contact information and emphasise your willingness to resolve the dispute. If your country has a time limit in which it must respond to your request, demand that you receive a response within the delay as required by law.

Further examples of FOI letters of appeal can be found here.

(c)  Request the opportunity to argue your case in court orally

In most countries, you can request that your appeal be heard orally. This can give you the opportunity to explain your case in person and in more depth to the appellate judges. It can also give you the opportunity to answer any questions that the judges may have about your request. Often to request oral arguments you will have to ask for and return a request form. Bear in mind that you are not obliged to make oral arguments if you do not wish to.

If your request for oral argument is granted, you must prepare well in order to competently argue your case before the court. You can chose to structure your arguments along the same format as the appeal letter, found above.

You can either write out what you wish to say before the court or prepare your notes in outline form. Whichever, form you choose to adopt, it is important that your performance is not rigid so that you are able to keep the judges’ attention and answer any questions they may have whilst you are presenting.

The judge may ask you questions on any point of your request or of your case in general. Make sure you thoroughly review these in advance so that you can answer any question that they may have.

It can be very useful to practice your oral argument before presenting it before the court. This will help you be more confident when presenting. It is useful to practice in front of another person, such as a friend or family member, so that you can receive their feedback on your performance. Ask them to interrupt you whilst you are speaking so that you can get use to what it is like speaking in front of a panel of appellate judges.

An appeal can be very productive..

• A lot depends on your original information request. If you filed a well-thought-out, clear and precise request and you requested information that does not fall under an exception, you have a good chance of a successful appeal.  The outcome will also depend on the existence of an independent appeal body or court.
• Ideally, your appeal will result in obtaining the full information you requested. Some parts of the information may fall under an exception and may legitimately be withheld.
• It is a common feature of right to information laws to require that the information provided in response to a request has to be truthful and accurate. Once you have obtained the information, it is your right to share it freely with anybody.
• If you appealed for a review of costs that the requested public body has charged for copying the information or documents, a successful appeal may reduce these costs.

But you need to be aware of the risks..

• Appeals are not always successful. If you only partially succeeded before a lower court, but consider an appeal in the hope of a complete victory, you may be disappointed; the outcome on appeal may be worse rather than better.
• Remember too that the other side may also appeal. In general, the body from which you requested information also has the right to appeal against a court order to disclose information. They often do so, forcing you back to court. You may then need to hire a lawyer, so take this into account in your financial planning.

Generally it is useful to consult a lawyer when you appeal. In countries with freedom of information legislation, you will find at least a handful of lawyers familiar with this law.

A good place to start is with non-governmental organisations (NGOs) specialised in freedom of information or freedom of expression. Often, non-lawyers working in these NGOs are also knowledgeable and can help you with your appeal or can recommend a good lawyer.

Investigative journalists also work together with lawyers specialised in this field; it is worth asking them for help finding a right to information lawyer.

NGOs which specialise in various fields can also help with your information request if it belongs to their area of activities, for example:

• in the field of corruption: Transparency.org
• in the field of environmental protection: the Access Initiative

If you discover that the documents you requested have been deliberately destroyed in response to your request, check the law or consult a criminal law expert. It is often forbidden for civil servants to destroy documents except in clearly defined circumstances (for example, after a set number of years).

You may be able to report the situation to the police or prosecutors.

If you notice that a particular body is systematically failing to comply with its duty to handle requests for information properly, there may be bodies to which you can complain about this, such as the freedom of information commission(er), the national ombudsman or the public advocate, if these bodies exist in your country.

See above “What matters can you raise in an appeal?” for examples of not handling information requests properly.