Under FOIA, there is no statutory duty on public authorities to operate an internal review procedure relating to their handling of FOI requests. There is however an incentive for them to do so – if a review procedure is available but has not been exhausted then the Commissioner can decline to entertain a complaint from the requester under FOIA section 50.
Section 45 of the Act enables the Secretary of State to issue a Code of Practice giving guidance to public authorities about how they should operate their functions under the Act. The Commissioner can make a practice recommendation (under section 48) where a public authority’s practice appears not to comply with the Code.
The Code issued under section 45 in November 2004 states that authorities should operate a review procedure, with decisions being made within a reasonable time. In February 2007 the Commissioner issued guidance that a reasonable time for completing an internal review is 20 working days from the date of the request; in a small number of cases it might be reasonable to take longer, but in no case should the time taken exceed 40 days.
Today the Information Commissioner’s Office (ICO) has issued a press release about a Practice Recommendation addressed to Greater Manchester Police (GMP) dated 31st March 2009. The Recommendation expresses concern both about the time taken by GMP to deal with internal reviews (over 150 working days in one case) and the apparent inaccuracy of some of the information provided to the ICO by GMP. The Commissioner recommends that GMP should take steps to ensure its future compliance with the time limits in the ICO’s February 2007 guidance. Paragraph 52 of the recommendation is significant, emphasising the ICO’s willingness to take formal action where there is continuing non-compliance with the Code.
Incidentally, although the Practice Recommendation refers to the ICO’s February 2007 guidance, new guidance about internal reviews (dealing with both FOIA and EIR) was issued on 16th February 2009. A useful summary of recent guidance issued by the ICO is available here, courtesy of the FOI blog maintained by the Campaign for Freedom of Information.
I am grateful to Andrew Smith (currently a pupil at 11KBW) for drawing the Practice Recommendation to my attention and helping to draft this post.