The availability of an appeal to the High Court on a point of law is an important safeguard in the Freedom of Information (FOI) process. While the Office of the Information Commissioner (OIC) has developed great expertise over the years, there will inevitably arise instances where a person affected by the outcome of a review process may believe that the OIC’s decision is incorrect as a matter of law. The FOI process by its nature from time to time raises complex legal issues, far beyond a straightforward interpretation of the legislation, and also tends to intersect with other disputes. For example, a landmark 2006 Supreme Court judgment on the rights of non-marital parents arose out of an FOI appeal.
Since 2014 twenty nine statutory appeals were brought against decisions of the Commissioner, of which twelve were brought by public bodies. Of this number, four appeals remain outstanding. Three cases have been determined by the Courts, with the OIC's decision quashed and remitted for further consideration in two and upheld in one. Three cases were settled and remitted for reconsideration by the OIC, in one case the OIC's decision was set aside by consent without remittal, and the final appeal was withdrawn.
An appeal against an OIC decision may be brought by any party affected by that decision. The remaining seventeen appeals since 2014 were brought by requesters or third parties rather than public bodies. For context, in this same period the OIC issued 1801 decisions. In almost two thirds of these decisions, that is 1,140, the approach taken by the public body was affirmed.
In the context of the large volume of decisions issued by the OIC, the numbers of appeals are generally low. Where appeals lodged by public bodies since 2014 have since been determined, they have resulted in the OIC's initial decision being set aside or reconsidered in three quarters of cases, suggesting that the statutory appeal mechanism is not being used in an indiscriminate manner. Moreover, it is important to note that the available statutory appeal under the FOI legislation is limited to where an error of law by the OIC can be demonstrated. The fact that a body may disagree with the outcome of an OIC process will not in itself be a basis for a successful appeal.
Legal costs relating to the FOI regime is a factor that will have to be taken into account when assessing the overall cost of FOI as part of the FOI review. There will be further opportunities for any interested parties to submit their views on this or any other aspect of the FOI system before its conclusion later this year.
