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

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

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

Internal Review An internal review is a fair and impartial review of decisions made during the original consideration of whether to release information. Internal review is an important second opportunity for the public authority to engage with an applicant once a refusal to grant access has been made by the Information Manager

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. Internal Review

Who conducts Internal Review? Ministers or Official members responsible for the public authority for refusals made subject to s. 15 (security, defence, international relations), 16( enforcement) & 18( records affecting the national economy) Chief Officers and principal officers of the public authority concerned for all other exemptions

Definition of Chief Officer S.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 public officer in the Portfolio as may be designated by the Governor; (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 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;

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

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

Internal Review An application for a review may only be made where the decision was not taken by the chief officer or the principal officer of the authority 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 Review An applicant must make an application for internal review within 30 calendar days of the date of the decision to refuse or date of deemed refusal. The applicant must also be advised of the outcome of the review within 30 calendar days of receipt of request for review.

No Internal Review No Internal review is possible for decisions made pursuant to s. 20 of the Law where the decision has been made by a Minister. S.20 Freedom of Information (General) Regulations

S.20 - Effective Conduct of Public Affairs (s. 20(1)(b),(c) and (d) subject to the public interest test) This exemption covers disclosures that would: –prejudice the maintenance of the convention of collective responsibility of Ministers; –inhibit free and frank exchange of views; –disclose legal advice of the Attorney-General; and –prejudice the effective conduct of public affairs.

How is an internal review to be conducted? All internal reviews must consider at a minimum THE INFORMATION RELEASED/DENIED vs. INFORMATION REQUESTED

How is an internal review to be conducted? Ministry of Justice Guidance UK The internal reviewer should discuss the decisions made with the Information Manager in order to build a full picture as to how decisions were made. Decisions on changes to internal processes may be discussed at this time

Outcome of the review The applicant must be fully informed of the decision made on internal review. The outcome of the review may be assessed by the Information Commissioner if the applicant makes a further appeal.

Simple vs. Complex Internal Reviews Simple considerations – e.g. deemed refusals, considerations on reasonable search Complex reviews - in particular where it is necessary to reconsider the public interest test.

Public Interest Test The public interest test applies to the exemptions for: –the national economy (section 18); –opinions, advice or recommendations prepared for the Cabinet or Cabinet committees (section 19(1)(a)); –prejudice to the effective conduct of public affairs; inhibiting the exchange of views; legal advice given by or on behalf of the Attorney-General; other prejudice to the conduct of public affairs; (section 20(1)(b)(c)(d)); –commercial interests (section 21); –heritage sites and endangered species (section 22); –personal information (section 23); and –endangering health and safety (section 24).

What is the public interest? Public interest means that there is a benefit to the public in certain information being made available. It does not mean “of interest to the public” but “in the interest of the public” It is a balancing exercise and you may be called to provide evidence for what are the adverse consequences of release.

S.19 - Cabinet Documents S.19 - Cabinet Documents (19(1)(a) subject to the public interest test) The purpose is to maintain the confidentiality necessary for the proper functioning of Cabinet. This exemption covers: –opinions, advice or recommendations prepared for Cabinet; and –records of consultations or deliberations during proceedings. This exemption does not apply to materials of a purely factual nature or reports, studies, tests or surveys of a scientific or technical nature.

Balancing Public Interests Against release: Harm to privacy Harm commercial interests Harm national security Harm to proper workings of government In favour of release: In favour of release:TransparencyAccountability Public health and safety Justice to individual Public participation

Outcomes of internal review The original decision is reversed; or The original decision is upheld.

Outcomes of internal review Where a refusal is reversed then the records will be provided, and the applicant should be provided with the information. Where the original decision is upheld (refusal), the applicant must be made aware of their further rights of appeal to the Information Commissioner. You must also ensure that full contact details for the Information Commissioners Office are provided to the applicant.

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 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.

Important points to bear in mind 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.

Important points to bear in mind 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

Important points to bear in mind 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.

Important points to bear in mind 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 issues Checklist The person conducting the review should: ensure that the application for review, logs in the FOI Tracking System the date of receipt of the request for internal review; ensure that the application for review, logs in the FOI Tracking System the date of receipt of the request for internal review; issue an acknowledgement; ask the Information Manager for the registered file for the FOI request;

Procedural issues review the application from the beginning; obtain the reasons for the original decision from the Information Manager; contact the FOI Unit if in doubt; Contact the Legal Department if an opinion is needed; if the application is withdrawn, log this on the FOI monitoring and tracking system;

Procedural issues record the decision on the file and on the FOI monitoring and tracking system; issue notification of the decision to the applicant; notify the Information Manager and ask him/her to arrange for access to the records if appropriate; and place copies of all correspondence and supporting documents with regard to the action which has been taken, onto the registered file for the request.

Reporting The FOI Law requires each public authority to report at the end of the year to the Information Commissioner Number of applications received, granted, deferred, refused AND The number of applications for internal review of relevant decisions and appeals against relevant decisions The number of applications for internal review of relevant decisions and appeals against relevant decisions

Summary Chief Officers :- Need to make a decision on who will conduct internal reviews Need to understand FOI Law to be able to review decisions of Information Managers Need to ensure that some one is delegated to update the FOI tracking system Need to conduct timely internal reviews.

Thank you for your attention!!