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Challenging a Refusal
Refusal notice
When a public authority refuses a request under either FOIA or EIR, it must provide the requester with a refusal notice, setting out under which exemption the information is withheld and why the exemption applies to the withheld information. If the exemption is a qualified exemption, it must also set out why, in its opinion, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
The refusal notice must also set out how the applicant can challenge the refusal.
Analysing a refusal notice
When you receive a refusal notice, you should consider the following factors in assessing whether the refusal was unlawful:
Has the authority recognised the request as a Freedom of Information request? Remember, if you requested information that is held by the public authority, you are entitled to rely on the Freedom of Information Act (FOIA) or Environmental Information Regulations (EIR), even if you do not state that you are making the request under these laws.
Has it applied the right law?
If the request is for environmental information, they must apply the EIR, and so are not entitled to rely on FOIA exemptions to refuse your request.
Has it said why the exemption applies?
The legislation specifically requires that the refusal notice sets out reasons why the exemption applies to the information requested.
Will disclosure cause ‘prejudice’ or ‘harm’?
Some exemptions only allow information to be withheld if disclosure would, or would be likely to, prejudice the particular interest protected by the exemption, such as commercial interests or the interests of international relations. If the authority relies on one of these exemptions, you should consider whether it is reasonable to believe that disclosure of the information requested would in reality be likely to cause such prejudice or harm. The test is whether disclosure would result in ‘a very significant or weighty chance of prejudice to the protected interest’.
Has it applied the public interest test properly?
If the exemption is a qualified exemption, the authority must apply the public interest test. For more information on the test and how it may be applied, see The Public Interest Test.
Has it withheld more than it should?
The authority must disclose all the information that cannot be lawfully withheld. This means that, if a document or file contains some information that falls within an exemption and can lawfully be withheld, but also some information that does not fall within the exemption, and should therefore be disclosed, the authority must, if possible, redact or cut out the exempt information and disclose the rest of the document.
Does it comply with the relevant guidance?
There is a large amount of published guidance on using and interpreting FOIA and EIR (see UsefulOrganisations and Contacts). The guidance is not legally binding, but public authorities generally should not depart from its requirements without good reason. So if you find that the way refusal or the refusal notice does not comply with relevant guidance, this may be evidence that the authority has acted unlawfully.
Appealing the refusal
The refusal notice should provided details of how to appeal the refusal. Usually this is by way of internal review, where you write back to the public authority that refused the request, asking them to reconsider their refusal. You should set out in the letter why you thing they should not have withheld the information provided.
If the authority has no internal review mechanism, or if you request an internal review and the authority still refuses to disclosed the requested information, you have a right to complain to the Information Commissioner. The Information Commissioner’s Office (the Commissioner) website sets out how to complain. The complaint mechanism is free, and there is no need for complainants to be legally represented.
With your complaint letter, you must include copies of the correspondence between you and the authority, in particular:
* The information request, and
* The refusal notice, and
* The request for internal review (if appropriate), and
* The response to the request for internal review.
You should also set out your reasons for considering that the refusal is unlawful, in as much detail as possible. If you believe that the authority has not complied with relevant guidance, set this out in the complaint letter, with clear references to the relevant guidance.
In dealing with your complaint, the Commissioner will contact the authority, and may ask to see the information withheld, so as to assess whether it does fall within the exemption cited. If the complaint is upheld, the Commissioner has the power to require the authority to provide you with the information requested.
Both parties (the requester or the public authority) can appeal the Commissioner’s decision to the Information Tribunal. Again, this is a free process, and parties do not need to be legally represented. An unusual feature of the Tribunal is that the other party to the appeal is the Commissioner. So if you appeal the Commissioner’s decision to reject your complaint against a public authority’s decision, you will be arguing before the Tribunal against the Commissioner, not the public authority who refused your request. Similarly, if your complaint is upheld, and the public authority appeals that decision to the Tribunal, it will be the Commissioner who will defend his decision to uphold the complaint, and you will not have an automatic right to be heard.
Both parties can appeal a Tribunal decision to the High Court on a point of law. This is a complex and potentially expensive procedure, and if you are considering appealing a Tribunal decision, you should obtain expert legal advice.
When a public authority refuses a request under either FOIA or EIR, it must provide the requester with a refusal notice, setting out under which exemption the information is withheld and why the exemption applies to the withheld information. If the exemption is a qualified exemption, it must also set out why, in its opinion, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
The refusal notice must also set out how the applicant can challenge the refusal.
Analysing a refusal notice
When you receive a refusal notice, you should consider the following factors in assessing whether the refusal was unlawful:
Has the authority recognised the request as a Freedom of Information request? Remember, if you requested information that is held by the public authority, you are entitled to rely on the Freedom of Information Act (FOIA) or Environmental Information Regulations (EIR), even if you do not state that you are making the request under these laws.
Has it applied the right law?
If the request is for environmental information, they must apply the EIR, and so are not entitled to rely on FOIA exemptions to refuse your request.
Has it said why the exemption applies?
The legislation specifically requires that the refusal notice sets out reasons why the exemption applies to the information requested.
Will disclosure cause ‘prejudice’ or ‘harm’?
Some exemptions only allow information to be withheld if disclosure would, or would be likely to, prejudice the particular interest protected by the exemption, such as commercial interests or the interests of international relations. If the authority relies on one of these exemptions, you should consider whether it is reasonable to believe that disclosure of the information requested would in reality be likely to cause such prejudice or harm. The test is whether disclosure would result in ‘a very significant or weighty chance of prejudice to the protected interest’.
Has it applied the public interest test properly?
If the exemption is a qualified exemption, the authority must apply the public interest test. For more information on the test and how it may be applied, see The Public Interest Test.
Has it withheld more than it should?
The authority must disclose all the information that cannot be lawfully withheld. This means that, if a document or file contains some information that falls within an exemption and can lawfully be withheld, but also some information that does not fall within the exemption, and should therefore be disclosed, the authority must, if possible, redact or cut out the exempt information and disclose the rest of the document.
Does it comply with the relevant guidance?
There is a large amount of published guidance on using and interpreting FOIA and EIR (see UsefulOrganisations and Contacts). The guidance is not legally binding, but public authorities generally should not depart from its requirements without good reason. So if you find that the way refusal or the refusal notice does not comply with relevant guidance, this may be evidence that the authority has acted unlawfully.
Appealing the refusal
The refusal notice should provided details of how to appeal the refusal. Usually this is by way of internal review, where you write back to the public authority that refused the request, asking them to reconsider their refusal. You should set out in the letter why you thing they should not have withheld the information provided.
If the authority has no internal review mechanism, or if you request an internal review and the authority still refuses to disclosed the requested information, you have a right to complain to the Information Commissioner. The Information Commissioner’s Office (the Commissioner) website sets out how to complain. The complaint mechanism is free, and there is no need for complainants to be legally represented.
With your complaint letter, you must include copies of the correspondence between you and the authority, in particular:
* The information request, and
* The refusal notice, and
* The request for internal review (if appropriate), and
* The response to the request for internal review.
You should also set out your reasons for considering that the refusal is unlawful, in as much detail as possible. If you believe that the authority has not complied with relevant guidance, set this out in the complaint letter, with clear references to the relevant guidance.
In dealing with your complaint, the Commissioner will contact the authority, and may ask to see the information withheld, so as to assess whether it does fall within the exemption cited. If the complaint is upheld, the Commissioner has the power to require the authority to provide you with the information requested.
Both parties (the requester or the public authority) can appeal the Commissioner’s decision to the Information Tribunal. Again, this is a free process, and parties do not need to be legally represented. An unusual feature of the Tribunal is that the other party to the appeal is the Commissioner. So if you appeal the Commissioner’s decision to reject your complaint against a public authority’s decision, you will be arguing before the Tribunal against the Commissioner, not the public authority who refused your request. Similarly, if your complaint is upheld, and the public authority appeals that decision to the Tribunal, it will be the Commissioner who will defend his decision to uphold the complaint, and you will not have an automatic right to be heard.
Both parties can appeal a Tribunal decision to the High Court on a point of law. This is a complex and potentially expensive procedure, and if you are considering appealing a Tribunal decision, you should obtain expert legal advice.
