Internal Review under the Freedom of Information Law 2007 Carole Excell, FOI Coordinator

Internal Review under the Internal Review under the Freedom of Information Law Freedom of Information Law

20072007

Carole Excell,Carole Excell,

FOI CoordinatorFOI Coordinator

““Internal reviews should not be overly Internal reviews should not be overly bureaucratic, but must be a fair and bureaucratic, but must be a fair and impartial means of reviewing decisions impartial means of reviewing decisions made during the original consideration of made during the original consideration of whether to release information”.whether to release information”.

Ministry of Justice Guidance UKMinistry of Justice Guidance UK

Internal ReviewInternal Review

An applicant may make a request for An applicant may make a request for internal review subject to s.33(1) of the internal review subject to s.33(1) of the FOI Law on the basis of:FOI Law on the basis of:– Refusal to grant access or partial grantRefusal to grant access or partial grant– Deferment of the grant of accessDeferment of the grant of access– Charging of a feeCharging of a fee– Refuse to amend or annotate a recordRefuse to amend or annotate a record– Failure to make a decision “deemed refusal”Failure to make a decision “deemed refusal”


An internal review is a fair and impartial review An internal review is a fair and impartial review of decisions made during the original of decisions made during the original consideration of whether to release consideration of whether to release information.information.

Internal review is an important second Internal review is an important second opportunity for the public authority to engage opportunity for the public authority to engage with an applicant once a refusal to grant with an applicant once a refusal to grant access has been made by the Information access has been made by the Information ManagerManager

It is essential that there be appropriate separation between the initial decision-maker (Information Manager) and the Chief Officer/Minister who is likely to conduct the internal review, to ensure that the person conducting the internal review has not been influenced by the views of the initial decision-maker. Internal reviews must not only be independent, but should be seen to be independent.


Who conducts Internal Review?Who conducts Internal Review?

Ministers or Official members responsible Ministers or Official members responsible for the public authority for refusals made for the public authority for refusals made subject to s. 15 (security , defence, subject to s. 15 (security , defence, international relations), international relations), 16( enforcement) 16( enforcement) & 18( records affecting the national & 18( records affecting the national economy)economy)

Chief Officers and principal officers of the Chief Officers and principal officers of the public authority concerned for all other public authority concerned for all other exemptionsexemptions

Definition of Chief OfficerDefinition of Chief OfficerS.2 FOI Regulations - “chief officer” means-(a) in the case of a ministry, the Permanent Secretary of that ministry;(b) (i) in the case of the Portfolio of Internal and External Affairs, such public officer in the Portfolio as may be designated by the Governor;(ii) in the case of the Portfolio of Legal Affairs, such publicofficer in the Portfolio as may be designated by theGovernor;(iii) in the case of the Portfolio of Finance and Economics, such public officer in the Portfolio as may be designated by the Governor; and(iv) in the case of the Portfolio of the Civil Service, such public officer in the Portfolio as may be designated by the Governor;

Definition of Chief OfficerDefinition of Chief Officer

(c) in the case of a statutory authority or a Government company, the person appointed as chief officer (by whatever name called) by

the board of that authority or company, or by other relevant authority;(d) in the case of the Audit Office, the Auditor-General;(e) in the case of the judicial administration, the court administrator or such other suitable person as may be designated by the Chief Justice; and(f) in the case of the Office of the Complaints Commissioner, the Complaints Commissioner;


Attorney General’s Chambers have now Attorney General’s Chambers have now confirmed that the Chief officer unless they confirmed that the Chief officer unless they delegate this decision to the Head of delegate this decision to the Head of Department is responsible for all internal Department is responsible for all internal reviews other than for s. 15, 16 & 18 for reviews other than for s. 15, 16 & 18 for Ministries, Portfolios, and DepartmentsMinistries, Portfolios, and Departments


Each Public Authority should give active Each Public Authority should give active consideration to training and maintaining a consideration to training and maintaining a list of staff of suitable seniority who can be list of staff of suitable seniority who can be called upon to conduct internal reviews if called upon to conduct internal reviews if the Minister or Chief Officer cannot the Minister or Chief Officer cannot conduct this review.conduct this review.Internal review may be delegated to a Internal review may be delegated to a person of equal or superior rank to the person of equal or superior rank to the person who made the initial decision. person who made the initial decision.


An application for a review may only be An application for a review may only be made where the decision was not taken by made where the decision was not taken by the chief officer or the principal officer of the the chief officer or the principal officer of the authorityauthority

For this reason it is advisable to– have all initial requests dealt with by

Information Managers so as not to deny the applicant a right to an internal review!!

Timelines for Internal ReviewTimelines for Internal Review

An applicant must make an application for An applicant must make an application for internal review within 30 calendar days of internal review within 30 calendar days of the date of the decision to refuse or date of the date of the decision to refuse or date of deemed refusal.deemed refusal.

The applicant must also be advised of the The applicant must also be advised of the outcome of the review within 30 calendar outcome of the review within 30 calendar days of receipt of request for review.days of receipt of request for review.

No Internal ReviewNo Internal Review

No Internal review is possible for decisions No Internal review is possible for decisions made pursuant to s. 20 of the Law where made pursuant to s. 20 of the Law where the decision has been made by a Minister.the decision has been made by a Minister.

S.20 Freedom of Information (General) S.20 Freedom of Information (General) RegulationsRegulations

S.20 - Effective Conduct of Public AffairsS.20 - Effective Conduct of Public Affairs(s. 20(1)(b),(c) and (d) subject to the (s. 20(1)(b),(c) and (d) subject to the

public interest test)public interest test)

This exemption covers disclosures that This exemption covers disclosures that would:would:

– prejudice the maintenance of the prejudice the maintenance of the convention of collective responsibility of convention of collective responsibility of Ministers;Ministers;

– inhibit free and frank exchange of views;inhibit free and frank exchange of views;– disclose legal advice of the Attorney-disclose legal advice of the Attorney-

General; andGeneral; and– prejudice the effective conduct of public prejudice the effective conduct of public

affairs.affairs.

How is an internal review to be How is an internal review to be conducted?conducted?

All internal reviews must consider at a All internal reviews must consider at a minimum minimum

THE INFORMATION THE INFORMATION RELEASED/DENIED RELEASED/DENIED

vs. vs.

INFORMATION REQUESTED INFORMATION REQUESTED

How is an internal review to be How is an internal review to be conducted?conducted?

Ministry of Justice Guidance UKMinistry of Justice Guidance UK

The internal reviewer should discuss the The internal reviewer should discuss the decisions made with the Information decisions made with the Information Manager in order to build a full picture as Manager in order to build a full picture as to how decisions were made.to how decisions were made.

Decisions on changes to internal Decisions on changes to internal processes may be discussed at this timeprocesses may be discussed at this time

Outcome of the reviewOutcome of the review

The applicant The applicant mustmust be fully informed of be fully informed of the decision made on internal review.the decision made on internal review.

The outcome of the review may be The outcome of the review may be assessed by the Information assessed by the Information Commissioner if the applicant makes a Commissioner if the applicant makes a further appeal. further appeal.

Simple vs. Complex Internal Simple vs. Complex Internal ReviewsReviews

Simple considerations – e.g. deemed Simple considerations – e.g. deemed refusals, considerations on reasonable refusals, considerations on reasonable searchsearch

Complex reviews - in particular where it is Complex reviews - in particular where it is necessary to reconsider the public interest necessary to reconsider the public interest test .test .

Public Interest TestPublic Interest Test

The public interest test applies to the exemptions The public interest test applies to the exemptions for:for:– the national economy (section 18);the national economy (section 18);– opinions, advice or recommendations prepared for the opinions, advice or recommendations prepared for the

Cabinet or Cabinet committees (section 19(1)(a));Cabinet or Cabinet committees (section 19(1)(a));– prejudice to the effective conduct of public affairs; prejudice to the effective conduct of public affairs;

inhibiting the exchange of views; legal advice given by or inhibiting the exchange of views; legal advice given by or on behalf of the Attorney-General; other prejudice to the on behalf of the Attorney-General; other prejudice to the conduct of public affairs; (section 20(1)(b)(c)(d));conduct of public affairs; (section 20(1)(b)(c)(d));

– commercial interests (section 21);commercial interests (section 21);– heritage sites and endangered species (section 22);heritage sites and endangered species (section 22);– personal information (section 23); andpersonal information (section 23); and– endangering health and safety (section 24).endangering health and safety (section 24).

What is the public What is the public interest?interest?

Public interest means that there is a Public interest means that there is a benefitbenefit to the public in certain to the public in certain information being made available.information being made available.

It does not mean It does not mean “of interest to the “of interest to the public”public” but but “in the interest of the “in the interest of the public”public”

It is a balancing exercise and you may It is a balancing exercise and you may be called to provide evidence for what be called to provide evidence for what are the adverse consequences of are the adverse consequences of release.release.

S.19 - Cabinet DocumentsS.19 - Cabinet Documents(19(1)(a) subject to the public interest

test)

The purpose is to maintain the confidentiality The purpose is to maintain the confidentiality necessary for the proper functioning of Cabinet.necessary for the proper functioning of Cabinet.

This exemption covers: This exemption covers: – opinions, advice or recommendations opinions, advice or recommendations

prepared for Cabinet; and prepared for Cabinet; and – records of consultations or deliberations records of consultations or deliberations

during proceedings.during proceedings.

This exemption does not apply to materials of a This exemption does not apply to materials of a purely factual nature or reports, studies, tests purely factual nature or reports, studies, tests or surveys of a scientific or technical nature.or surveys of a scientific or technical nature.

Balancing Public InterestsBalancing Public Interests

Against release:Against release:

Harm to privacyHarm to privacy

Harm commercial Harm commercial interestsinterests

Harm national securityHarm national security

Harm to proper workings Harm to proper workings of governmentof government

In favour of In favour of release:release:

TransparencyTransparency

AccountabilityAccountability

Public health and Public health and safetysafety

Justice to individualJustice to individual

Public participationPublic participation

Outcomes of internal reviewOutcomes of internal review

The original decision is reversed; or The original decision is reversed; or

The original decision is upheld. The original decision is upheld.

Outcomes of internal reviewOutcomes of internal review

Where a refusal is reversed then the records Where a refusal is reversed then the records will be provided, and the applicant should be will be provided, and the applicant should be provided with the information. provided with the information.

Where the original decision is upheld (refusal), Where the original decision is upheld (refusal), the applicant the applicant mustmust be made aware of their be made aware of their further rights of appeal to the Information further rights of appeal to the Information Commissioner. Commissioner.

You must also ensure that full contact details for You must also ensure that full contact details for the Information Commissioners Office are the Information Commissioners Office are provided to the applicant.provided to the applicant.

Important points to bear in mind Important points to bear in mind The primary purpose of the FOI Law is to provide the public with access to as much information held by public authorities as is possible in the circumstances of each application.

The starting point for agencies is that information must be disclosed on request, unless a case can be made out justifying exemption.

The Law creates a presumption in favour of disclosure.

Important points to bear in mindImportant points to bear in mind

The ONUS is on the public authority to justify to the satisfaction of the Information Commissioner that any claimed exemption applies and to prove to the satisfaction of the Information Commissioner that the procedures specified in the FOI Law were complied with.


You may have to justify why each and every individual record is determined to be exempt under the FOI Law; and why any disputed procedures and practices followed by the public authority were reasonable.


To some extent, the exemptions may overlap and more than one exemption may apply to the same document. Decision-makers should keep in mind this possibility, and separately identify each exemption which applies.

Use the Guidance Manual provided by the FOI Unit to each Chief Officer to assist in making decision on Internal Review


If it is possible to delete material from a copy of a document so that the document is no longer exempt, and that some of the information may be released this should be the approach taken and release the redacted copy.


A statement of the reasons is needed for any refusal of a request which must adequately address the exemption which is being relied on for provision of a refusal.

JADE the FOI tracking system should be utilised to log the outcome of the decision on internal review.

Procedural issuesProcedural issues

ChecklistChecklist

The person conducting the review should:The person conducting the review should:

ensure that the application for review, ensure that the application for review, logs in the FOI Tracking System the date logs in the FOI Tracking System the date of receipt of the request for internal review;of receipt of the request for internal review;

issue an acknowledgement;issue an acknowledgement;

ask the Information Manager for the ask the Information Manager for the registered file for the FOI request;registered file for the FOI request;


review the application from the beginning;review the application from the beginning;

obtain the reasons for the original decision obtain the reasons for the original decision from the Information Manager;from the Information Manager;

contact the FOI Unit if in doubt;contact the FOI Unit if in doubt;

Contact the Legal Department if an opinion Contact the Legal Department if an opinion is needed;is needed;

if the application is withdrawn, log this on if the application is withdrawn, log this on the FOI monitoring and tracking system; the FOI monitoring and tracking system;


record the decision on the file and on the FOI record the decision on the file and on the FOI monitoring and tracking system;monitoring and tracking system;

issue notification of the decision to the applicant; issue notification of the decision to the applicant;

notify the Information Manager and ask him/her notify the Information Manager and ask him/her to arrange for access to the records if to arrange for access to the records if appropriate; and appropriate; and

place copies of all correspondence and place copies of all correspondence and supporting documents with regard to the action supporting documents with regard to the action which has been taken, onto the registered file for which has been taken, onto the registered file for the request.the request.

Reporting Reporting

The FOI Law requires each public authority to The FOI Law requires each public authority to report at the end of the year to the Information report at the end of the year to the Information Commissioner Commissioner

Number of applications received , granted , Number of applications received , granted , deferred, refuseddeferred, refused

ANDAND The number of applications for internal review of The number of applications for internal review of relevant decisions and appeals against relevant relevant decisions and appeals against relevant decisionsdecisions

SummarySummaryChief Officers :-Chief Officers :-Need to make a decision on who will conduct Need to make a decision on who will conduct internal reviewsinternal reviews

Need to understand FOI Law to be able to Need to understand FOI Law to be able to review decisions of Information Managersreview decisions of Information Managers

Need to ensure that some one is delegated to Need to ensure that some one is delegated to update the FOI tracking system update the FOI tracking system

Need to conduct timely internal reviews.Need to conduct timely internal reviews.

Thank you for your attention!!Thank you for your attention!!