Appeal

If either a complainant or a public authority is unhappy with a decision of the Information Commissioner or the Scottish Information Commissioner, they can appeal the decision through the courts. The precise appeal route depends on the commissioner in question.

Non-Scottish appeals

Appeals against decisions of the Information Commissioner go to the First-Tier Tribunal or the Upper Tribunal by virtue of section 57 of the Freedom of Information Act 2000, as amended by SI 2010/22. Such cases are assigned to the General Regulatory Chamber of the First-Tier Tribunal by SI 2010/2655. Cases can be transferred to the Upper Tribunal under rule 19 of SI 2009/1976 (as amended by SI 2010/43).

Appeals against decisions of the First Tier Tribunal go to the Upper Tribunal by virtue of section 11 of the Tribunals, Courts and Enforcement Act 2007. Such appeals are assigned to the Administrative Appeals Chamber by SI 2010/2655.

Appeals against decisions of the Upper Tribunal go to the Court of Appeal in England and Wales, the Court of Session, or the Court of Appeal in Northern Ireland, as appropriate, by virtue of section 13 of the Tribunals, Courts and Enforcement Act 2007.

Appeals from each of those courts go to the Supreme Court of the United Kingdom by virtue of section 40 of the Constitutional Reform Act 2005 and section 42 of the Judicature (Northern Ireland) Act 1978.

How to appeal to the First-Tier Tribunal (Information Rights)

If you disagree with a decision made by the Information Commissioner, you can appeal that decision to the First-Tier Tribunal (Information Rights) - known to its friends as the "Information Tribunal".

Here's what you need to know:

• The opinion of the Information Commissioner must be expressed in a formal document called a Decision Notice before you can appeal it to the Tribunal.

• Sometimes during the course of an investigation, the ICO will let you know that they intend to decide against you, and ask if you'd like to withdraw your complaint. If you think you might want to appeal their decision, you need to answer 'no' to this, and request a Decision Notice.

• Useful resources on the Tribunal website include the Guidance for Unrepresented Parties (in other words, instructions and information for people applying to the Tribunal who don't have a lawyer representing them).

• Most of the people who appeal decisions to the Tribunal are not represented by a lawyer - the Tribunal staff are used to this, and are very helpful to appellents (if you're making the appeal, then you're the 'appellant').

• Although the ICO and the public authority will probably be represented by a lawyer, this doesn't mean they're more likely to win - the Tribunal takes into account that you're not a lawyer, and can't be expected to know the law like one. Unrepresented appellants frequently win cases before the Tribunal.

• To file your appeal, complete the 'Notice of Appeal' form, on the Tribunal's website at How to Appeal, and send it to the Tribunal. There are some notes to help you complete the form.

• There is no fee for filing an appeal - it's free.

• You can't be charged the other side's legal costs, even if you lose the case - unless you behave unreasonably. As long as you have a genuine purpose for your appeal (i.e. you're not just doing it to be annoying), and you behave courteously to the Tribunal and the other parties, then you should be fine.

• The form for submitting your appeal is very straightforward - the only tricky part is the 'Grounds for Appeal'.

• This is where you put your reasons why you think that the Information Commissioner's decision was wrong.

• It's worth putting some thought into this; the best way to find out what 'grounds of appeal' you might have is to look at the sections on this website concerned with the exemption which has been applied.

• For example, some exemptions are 'qualified exemptions', which means that they take into account the public interest in the disclosure of the information. ('Public interest' means reasons why it's in the interest of the general public - i.e. why it would work to their favour - to have the information disclosed). So for these exemptions you could argue that there is a public interest that the Commissioner hasn't considered, or one that's more important than the Commissioner thought it was.

• For most exemptions, there's a particular set of facts which need to be considered by the ICO when they're making their decision. These are set out in the ICO's guidance and Lines To Take - all linked from this site. So read those and, if the ICO haven't followed them, then you have some possible grounds of appeal right there.

• You don't have to go into a whole lot of detail in the 'grounds of appeal' - it's just for a summary. Later on you get the opportunity to set out your argument in more detail, and present evidence to support it.

• You need to send the Notice of Appeal to the Tribunal [b]within 28 days[/b] of receiving the decision noties. If you don't, they'll reject it, unless you've got a really good excuse.

• Once the Tribunal received the Notice of Appeal, they'll acknowledge it, and ask you to wait 6 to 8 weeks for the ICO to respond.

Scottish appeals

Appeals against decisions of the Scottish Information Commissioner go straight to the Court of Session under section 56 of the Freedom of Information (Scotland) Act 2002, and thereafter to the Supreme Court.