FREEDOM OF INFORMATION ACT 1997

Review by Commissioner of decisions.

34

34. (1) This section applies to—

( a) a decision under section 14 , other than a decision referred to in paragraph (c),

( b) a decision specified in paragraph (a), (b), (c), (d), (e) or (f) of section 14 (1) ,

( c) a decision under section 14 , or a decision under section 47 , that a fee or deposit exceeding £10 or such other amount (if any) as may stand prescribed for the time being should be charged under section 47 ,

( d) a decision under section 9 to extend the time for the consideration of a request under section 7 ,

F59 [ ( dd ) a decision to refuse to grant a request under section 7 on the ground that, by virtue of section 46, this Act does not apply to the record concerned, ]

( e) a decision under section 11 to defer the giving of access to a record falling within paragraph (b) or (c) of subsection (1) of that section, and

( f) a decision on a request to which section 29 applies,

but excluding—

(i) a decision aforesaid made by the Commissioner in respect of a record held by the Commissioner or (in a case where the same person holds the office of Ombudsman and the office of Commissioner) made by the Ombudsman in respect of a record held by the Ombudsman, and

(ii) a decision referred to in paragraph (b), and a decision under section 47 referred to in paragraph (c), made by a person to whom the function concerned stood delegated under section 4 at the time of the making of the decision.

(2) Subject to the provisions of this Act, the Commissioner may, on application to him or her in that behalf, in writing or in such other form as may be determined, by a relevant person—

( a) review a decision to which this section applies, and

( b) following the review, may, as he or she considers appropriate—

(i) affirm or vary the decision, or

(ii) annul the decision and, if appropriate, make such decision in relation to the matter concerned as he or she considers proper,

in accordance with this Act.

F60 [ (3) A decision under subsection (2) shall be made as soon as may be and, in so far as practicable, not later than 4 months after the receipt by the Commissioner of the application for the review concerned. ]

(4) An application under subsection (2) shall be made—

( a) if it relates to a decision specified in paragraph (d) or (f) of subsection (1), not later than 2 weeks after the notification of the decision to the relevant person concerned F59 [ or, in a case in which the Commissioner is of opinion that there are reasonable grounds for extending that period, the expiration of an additional period of such length as he or she may determine ], and

( b) if it relates to any other decision specified in that subsection, not later than 6 months after the notification of the decision to the relevant person concerned or, in a case in which the Commissioner is of opinion that there are reasonable grounds for extending that period, the expiration of such longer period as he or she may determine.

(5) A person who makes an application under subsection (2) may, by notice in writing given to the Commissioner, at any time before a notice under subsection (10) in relation to the application is given to the person, withdraw the application, and the Commissioner shall cause a copy of any notice given to him or her under this subsection to be given to the relevant person, or the head, concerned, as may be appropriate, and any other person to whom, in the opinion of the Commissioner, it should be given.

(6) As soon as may be after the receipt by the Commissioner of an application under subsection (2), the Commissioner shall cause a copy of the application to be given to the head concerned, and, as may be appropriate, to the relevant person concerned and, if the Commissioner proposes to review the decision concerned, he or she shall cause the head and the relevant person and any other person who, in the opinion of the Commissioner, should be notified of the proposal to be so notified and, thereupon, the head shall give to the Commissioner particulars, in writing or in such other form as may be determined, of any persons whom he or she has or, in the case of a refusal to grant a request to which section 29 applies, would, if he or she had intended to grant the request under section 7 concerned, have notified of the request.

(7) Where an application under subsection (2) is made, the Commissioner may at any time endeavour to effect a settlement between the parties concerned of the matter concerned and may for that purpose, notwithstanding subsection (3), suspend, for such period as may be agreed with the parties concerned and, if appropriate, discontinue, the review concerned.

(8) In relation to a proposed review under this section, the head, and the relevant person concerned and any other person who is notified under subsection (6) of the review may make submissions (as the Commissioner may determine, in writing or orally or in such other form as may be determined) to the Commissioner in relation to any matter relevant to the review and the Commissioner shall take any such submissions into account for the purposes of the review.

(9) ( a) The Commissioner may refuse to grant an application under subsection (2) or discontinue a review under this section if he or she is or becomes of the opinion that—

(i) the application aforesaid or the application to which the review relates (“the application”) is frivolous or vexatious,

(ii) the application does not relate to a decision specified in subsection (1), or

(iii) the matter to which the application relates is, has been or will be, the subject of another review under this section.

( b) In determining whether to refuse to grant an application under subsection (2) or to discontinue a review under this section, the Commissioner shall, subject to the provisions of this Act, act in accordance with his or her own discretion.

(10) Notice, in writing or in such other form as may be determined, of a decision under subsection (2) (b), or of a refusal or discontinuation under subsection (9), and the reasons therefor, shall be given by the Commissioner to—

( a) the head concerned,

( b) the relevant person concerned, and

( c) any other person to whom, in the opinion of the Commissioner, such notice should be given.

(11) ( a) The notice referred to in subsection (10) shall be given as soon as may be after the decision, refusal or discontinuation concerned and, if it relates to a decision under subsection (2), in so far as practicable, within the period specified in subsection (3).

( b) The report of the Commissioner for any year under section 40 shall specify the number of cases (if any) in that year in which a notice referred to in subsection (10) in relation to a decision under subsection (2) (b) was not given to a person specified in subsection (10) within the appropriate period specified in paragraph (a).

(12) In a review under this section—

( a) a decision to grant a request to which section 29 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified, and

( b) a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.

(13) A decision of the Commissioner following a review under this section shall, where appropriate, specify the period within which effect shall be given to the decision and, in fixing such a period, the Commissioner shall have regard to the desirability, subject to section 44 , of giving effect to such a decision as soon as may be after compliance in relation thereto with subsection (11).

(14) Subject to the provisions of this Act, a decision under subsection (2) shall—

( a) in so far as it is inconsistent with the decision to which this section applies concerned have effect in lieu thereof, and

( b) be binding on the parties concerned.

(15) In this section “ relevant person”, in relation to a decision specified in subsection (1), means—

( a) the requester concerned and, if the decision is in respect of a request to which section 29 relates, a person to whom subsection (2) of that section applies, or

( b) if the decision is under section 17 or 18 , the person who made the application concerned under that section.

Annotations:

Amendments:

F59

Inserted (11.04.2003) by Freedom of Information (Amendment) Act 2003 (9/2003), s. 26(a) and (c), commenced on enactment.

F60

Substituted (11.04.2003) by Freedom of Information (Amendment) Act 2003 (9/2003), s. 26(b), commenced on enactment.

Editorial Notes:

E56

Power pursuant to subs. (1) (c), s. 3 and s. 47 exercised (7.07.2003) by Freedom of Information Act 1997 (Fees) Regulations 2003 (S.I. No. 264 of 2003).