About this detailed guidance
This guidance explains how we deal with complaints made about public authorities under section 50 of the Freedom Information Act 2000 (FOIA) or the Environmental Information Regulations 2004 (EIR).
- What happens when a complaint is made to the ICO?
- What do you expect us to do?
- What happened if we change our view about the case?
- How long do we have to respond?
- How do you reach your view about a complaint?
- When do you issue a decision notice?
- How do you serve a decision notice?
- What happens if we fail to comply with a decision notice?
- What happens when a decision notice is appealed?
- What if we want our information sent back?
- What happens when you receive information requests about a case?
- How can we contact you?
Under section 50 of FOIA, any person who is unhappy with the way you have dealt with their request has the right to make a complaint to the Information Commissioner’s Office (ICO). Regulation 18 of the EIR gives the ICO the power to enforce this piece of legislation; it effectively imports the enforcement provisions of Part 4 of FOIA into the EIR.
We usually ask the complainant for copies of their original request, any refusal notice and any internal review decision that you have sent to them.
When a eligible complaint has been made to us, we will contact you to explain that we have received a complaint and tell you what we expect you to do. However, if you have withheld information from the complainant, we won’t usually ask you to send all of it to us immediately. We suggest that you use this time to ensure that you have collated all the relevant documentation.
Our aim is to resolve most cases within six months of receiving them.
Before we become involved we expect you will already have considered the issues around withholding the information and shared your position with the complainant during your internal review. If you have done so, then our investigation will be quicker and easier.
We expect you to be clear about:
- what information the complainant has asked for;
- what information you hold;
- what you have provided; and
- what you have withheld.
If you are not sure, you should check this as soon as we tell you that we have received the complaint, so that you are clear by the time we have allocated the case to a case officer.
The ICO is the independent decision maker. This means we are impartial and do not act on behalf of complainants or public authorities.
The Commissioner does not investigate cases personally and has authorised case officers to investigate eligible complaints on their behalf.
We will assign a case officer to each case. They will be your point of contact throughout our investigation.
Case officers may seek submissions from you, and they will usually need to see any information you have withheld. They will also take into account relevant information provided by the complainant.
Where possible, we will try to resolve cases early, if they involve minimal or no investigation.
If the case is suitable for early resolution, the case officer may share their views with you and the complainant at the earliest appropriate stage or issue a decision notice where there is clear precedent.
Identifying cases suitable for early resolution should provide a quicker service, and often a better outcome for all parties. However, not all cases will be suitable for early resolution and certain factors will affect this:
- What does the complainant want?
- Can we make a decision based on the correspondence (and the withheld information where provided)?
- What do we know about the public authority?
- Does the ICO have an existing position on the requested information?
Depending on the above factors, in some early resolution cases it will not be necessary to contact one or all of the parties in order for the case officer to reach a decision.
Responding to the investigation letter
If an eligible complaint is not suitable for early resolution, or this has been attempted unsuccessfully, the case officer will proceed to a full investigation.
The case officer will ask you to reconsider the case and provide a submission to us in response to the issues raised. They may also ask you to answer specific questions.
We expect public authorities to engage positively with our case officers and provide relevant information in a timely manner and at the first time of asking.
Your submission should include enough detail to explain:
- how you handled and responded to the request;
- where applicable, why an exemption or exception applies ;
- where a qualified exemption or exception is cited; and
- how the public interest in maintaining that exemption outweighs the public interest in disclosure.
When you are reconsidering the case, we want you to recheck your reasoning by looking at the following resources:
- our general guidance on FOIA and the EIR;
- our specific guidance about exemptions or exceptions and other procedural matters; and
- any relevant decision notices.
In your submission it will be useful if you include:
- information about the context of the request, and the role of any staff named within the information you’ve provided or withheld;
- copies of documents that back up the points you have made in your submission;
- background about the information under consideration that will help us understand its context and sensitivity;
- any legal advice you have received that may help your authority’s arguments (although you are not obliged to provide this type of legal advice to the ICO);
- your view on whether it might be possible to release the information in a redacted version; and
- your view on whether the case may be open to informal resolution, for example whether you would be willing to release some or all of the information to the complainant or whether there is some other action you could take which would satisfy them.
It is important to remember that it is your responsibility to satisfy the ICO that you should not disclose the information and that you have complied with the law. This is your opportunity to finalise your position with the ICO.
If necessary, the case officer may ask you to produce a schedule or chronologies or both of the information you hold which is relevant to the request. This may be particularly helpful if the requested information is voluminous, or more than one exemption is applied within a document.
When you reconsider the case and review our resources, it is possible that you may change your view.
Even after we are involved and have accepted the case for investigation, you can discuss the case with the complainant – particularly if this is likely to lead to you resolving the case informally. If you resolve a case without our involvement, please let us know as soon as possible.
You may also achieve an informal resolution as a result of our involvement, either because you subsequently disclose some or all of the requested information, or the complainant accepts that their complaint will not be upheld.
If you come to the conclusion that you could resolve the case by full or partial disclosure of the information, or by otherwise amending your response to the information request, then you should do so. Please inform the case officer at the earliest opportunity and send them a copy of your revised response.
If the complainant then chooses to withdraw their complaint, we will close the case without it being necessary for us to issue a decision notice. The complainant may, however, still ask for a decision notice. In these cases we must issue a decision, unless we considers that the case is frivolous or vexatious.
Can we change our position about the information request?
During your case review you may decide that you need to cite alternative or additional grounds for refusing the request.
We will consider new exemptions or exceptions which you apply for the first time during the investigation. However, it is your responsibility to tell us, and the complainant, why the new exemption or exception applies. You must make sure you do not cause unnecessary delay by changing your position at a late stage. We will make our decision according to the information you provide to us.
Normally, you have 20 working days to make your final submission and we will clearly indicate the deadline to you. It is your responsibility to meet this deadline and make sure you have arrangements in place to allow you to fully cooperate with our investigation.
However, case officers will set an appropriate deadline for responding, using their judgement and knowledge of the case. They will consider the volume and complexity of information required against the size and resources of the public authority.
In early resolution cases, the case officer is more likely to set a shorter deadline. A short deadline may also be appropriate where minimal work is required from the public authority, for example if the case officer requests a copy of the withheld information but does not require a detailed submission.
If you do not respond within the deadline, the case officer will find out the reason for the delay, and your estimated time for response. If you are unable to satisfy the case officer that you will provide a response, then they may decide to issue a formal information notice under section 51 of FOIA to obtain the information they need. If you fail to respond to an information notice issued by the ICO, then this may be treated as contempt of court.
If you fail to respond to the case officer’s enquiries, this may also mean that they decide the case purely on the information already submitted. It is in your interest to satisfy us that you have complied with the law. If you fail to do so, you are more likely to receive an adverse decision notice.
We usually publish information notices issued during our investigation of a complaint on our website when we close the case.
After receiving your final submission, the case officer examines and considers it to help us make a decision about whether you have complied with FOIA or the EIR.
Depending on the complaint, the case officer may consider:
- what searches you did to determine whether you held the information;
- the exemptions or exceptions that you applied and whether you applied them correctly;
- the factors that you considered in balancing the public interest in the information;
- what, if any, potential harm there would be in releasing the information;
- your basis for refusing a request if the cost of compliance would exceed the appropriate limit; and
- your basis for refusing the request if it was vexatious or repeated or not valid.
The case officer will also take into account case law, legislative requirements, developing precedent, along with any other relevant guidance. Wherever possible they will make a decision based on your submission, without seeking further information from you.
When we consider it is necessary, the ICO may decide to issue information notices, enforcement notices or practice recommendations in line with our Regulatory Action Policy.
We will issue a decision notice if the case cannot be resolved informally.
The decision notice will set out the ICO’s final decision about your compliance with FOIA or the EIR. If we decide you have complied with the legislation, we will class the complaint as ‘not upheld’. Or, if you have failed to comply, we will class the complaint as ‘upheld’ and, where relevant, tell you what steps you now need to take.
The ICO cannot withdraw or amend a decision notice after we have issued it.
We normally issue the decision notice by email to both parties. In cases where the complainant has not provided us with an email address, we will serve the decision notice to them by post.
We publish decision notices on the ICO website. We redact the complainant’s contact details from the published decision notice. If the decision notice contains any other personal information, the case officer will consider whether we should redact it.
If you decide to publish a decision notice, we expect you to take similar action.
Occasionally it may be necessary to issue part of a decision notice as a confidential annex. In that situation we will only share the confidential annex with the public authority. This may be necessary where, for example, the detailed arguments provided by the public authority disclose the content of the withheld information.
If we believe that you haven’t complied with the steps we specified in a decision notice within 35 calendar days, then the ICO can ask the court to look into the case. The court may then deal with your authority as if you have committed a contempt of court.
If you or the complainant wish to appeal against the ICO’s decision, you can appeal to the First-Tier Tribunal (Information Rights). You must make an appeal within 28 calendar days of the date the decision notice was signed.
Information about the appeals process is included at the end of the decision notice.
If you would like the information you sent to us returned, you need to ask us to send it to you. If you have not contacted us within six months of the end of the investigation, we will usually destroy the information. However, we will keep information beyond this time, if there is an appeal to the Tribunal.
Occasionally, we may decide to keep some information to help us with future cases. If so, we will regularly review whether we need to continue to keep it.
If we receive any information requests about the case, we have a duty under FOIA and the EIR to respond. It is in the public interest that we are open, transparent and accountable for the work that we do. It is also important that we do not undermine the trust and confidence of those who write to us.
If you do have reasons why we should not share information you’ve sent to us with anyone else, you should explain this to the case officer as part of your submission.
We will usually consult with you if we receive an information request about a complaint.
The case officer is your first point of contact to discuss any issues or outstanding queries. You will find their contact details on the correspondence they have sent to you.