The controversial review of the Freedom of Information Act has finished and buried among the recommendations is one that could damage the public’s right to know.
Against predictions the Independent Commission made some constructive and sensible recommendations for how the FOI Act should develop. Introducing statutory time periods for internal reviews; publishing FOI performance figures for authorities with more than 109 staff members; and reviewing the funding of the regulator, the ICO, to name a few.
Recommendation 17, however, is a standout recommendation as it offers the potential to hamper the right of appeal. It says:
That the government legislates to remove the right of appeal to the First-tier Tribunal against decisions of the IC made in respect of the Act. Where someone remained dissatisfied with the IC’s decision, an appeal would still lie to the Upper Tribunal. The Upper Tribunal appeal is not intended to replicate the full-merits appeal that currently exists before the IC and First-tier Tribunal, but is limited to a point of law.
If the government decides to follow the recommendation it would abolish a fundamentally important appeal stage for FOI requesters and public authorities. At present the First Tier Tribunal (FTT) allows for challenges to be made against a Decision Notice from the ICO – DNs are issued by the regulator when it receives a valid complaint from a requester and in 11 years the ICO has issued more than 8,000 of them.
The FTT is often the first stage of formal legal proceedings in FOI cases. Many requesters – journalists, campaigners, NGOs, members of the public – are able to represent themselves at the FTT as it can make decisions based on the public interest in disclosure.
If removed from the process appeals against a DN, either from public authorities or requesters, will have to be made straight to the higher Upper Tier Tribunal. This tribunal doesn’t consider public interest arguments; it can only consider appeals that are based on a point of law, making them less accessible (although not impenetrable) to those without a legal footing.
As such removing the FTT, as the Commission recommends, would stop FOI requesters appealing cases where the information contested may be in the public interest. The Campaign for Freedom of Information says 21% of appeals by requesters against ICO DNs are overturned, in whole or in part, by the FTT.
The proposal is a worrying one that could significantly disrupt and weaken initial rights of appeal for public FOI requesters and authorities.