You must establish a procedure for dealing with complaints about how you have complied with RPSI.
An applicant who wishes to complain, for example about how you have handled their request for re-use, may submit their complaint to you in writing. You have to respond to the complaint within a reasonable time and explain the reasons for your decision.
Complaints to the ICO
If the applicant is not satisfied with your response to their complaint, they can complain to the ICO. Complaints to us can be about any aspect of how you handled the re-use request. Examples include:
- failing to respond to their request;
- refusing to allow re-use;
- placing unnecessary restrictions on re-use; or
- incorrectly charging a fee above marginal cost.
The ICO will investigate the complaint and assess whether you have complied with the requirements of RPSI. How we resolve the complaint will depend on what it is about. We can issue a decision notice, unless the complaint concerns charges above marginal cost, in which case we make a non-binding recommendation.
The ICO’s decision making and investigatory powers in RPSI are taken from the equivalent provisions in FOIA. If we do not uphold the complaint, you will not have to take further action. If we decide that you have failed to comply with the requirements of RPSI, the decision notice will specify the steps you must take to comply and the time period for doing so.
The decision notice is binding on you. Unless you wish to appeal, you must take the steps specified in the decision notice and failure to do so may be treated as contempt of court.
As with FOIA, you or the complainant can appeal against our decision notice to the First-tier Tribunal (Information Rights), which is a part of the General Regulatory Chamber (GRC). The First-tier Tribunal will hear the appeal and make a decision on it.
Where we can issue a legally binding decision notice, we also have certain other enforcement powers, as we do under FOIA. We can issue an information notice to obtain information in order to help us to deal with a complaint. If necessary we can also issue an enforcement notice to compel you to take steps to comply with RPSI. You can also appeal to the First-tier Tribunal against our information and enforcement notices.
We cannot issue a binding decision notice if the complaint is about charges above marginal cost. You can charge above marginal cost if you are required to generate revenue to cover part of the costs of performing your public task or the cost of particular documents, or if you are a library, museum or archive. The Regulations specify how to calculate the charge if one of these cases applies. If the complaint is that you have not calculated the charge in line with the Regulations, or that you have charged above marginal cost when you are not entitled to do so, then we can only make a non-binding recommendation. You must respond to our recommendation within 20 working days by telling us what action, if any, you intend to take and the timescale. You can say that you will change your response to the request, reaffirm it, or take no action.
If the complainant is not satisfied with your response to our recommendation, they can appeal to the First-tier Tribunal. If so their case would be against you and not the ICO. You may also appeal to the Tribunal against our recommendation.
We don’t have to issue a decision notice or a recommendation if,
- the complainant has not exhausted your internal complaints procedure;
- there has been an undue delay in making the complaint;
- it is frivolous or vexatious; or
- the complainant has withdrawn or abandoned it.
If we receive a RPSI complaint concerning a Scottish public authority as defined in the Freedom of Information (Scotland) Act 2002, then we will notify the Scottish Information Commissioner, and the two Commissioners will share information as necessary. We will issue the decision notice or recommendation.