Procedure for Review
67. Each Scottish public authority must have a review procedure in place which may then be used by any person who considers that their request has not been properly handled, or who is otherwise dissatisfied with the outcome of the consideration of their request, and where the issue is such that it cannot be resolved informally in discussion with the official dealing with the request. Information on the review procedure should be included in the authority's publication scheme if it has one or made readily available elsewhere. Under regulation 17(1), the enforcement and appeal provisions of the FOISA apply in respect of representations made by an applicant.
68. When communicating any decision made in relation to a request under the EISRs which contains a refusal, Scottish public authorities are obliged, under regulations 13(e) to notify the applicant of his or her right of review. The Scottish public authority should provide details of its own review procedure, including how to make representations for a review and inform the applicant of the right to appeal to the Scottish Information Commissioner under section 47 of the FOISA if he or she is still dissatisfied following the Scottish authority's review.
69. As a matter of good practice, authorities should provide details of their review procedures when responding to all requests. It is for applicants to decide whether they are content with the response that they receive. They may have concerns that they wish to pursue in circumstances where the Scottish public authority claims to have fully complied with the request.
70. Any written reply from the applicant, including one transmitted by electronic means, expressing dissatisfaction with a Scottish public authority's response to a valid request for information should be treated as representations for review. Such representations may relate to information made (or not made) available, handling, fees, indeed to compliance with any requirements of the regulations.
71. The review procedure should be a fair and impartial means of dealing with handling problems and reviewing decisions taken pursuant to the EISRs, including decisions taken about where the public interest lies. It should be possible to reverse or otherwise amend decisions previously taken. Review procedures should be clear and not unnecessarily bureaucratic. They should be capable of producing a prompt determination of the review.
72. The review should be handled by a person who was not a party to the original decision, where this is practicable. If this is not possible, the need for impartiality and fairness should be borne in mind. The circumstances should be explained to the applicant when the review decision is notified. Where a review cannot realistically be undertaken by someone independent of the original decision, the Scottish public authority should still consider how best to conduct the internal review procedure, providing appropriate moderation and transparency. It should also inform the applicant that, following review, the applicant will be free to approach the Scottish Information Commissioner.
73. Scottish public authorities must consider and acknowledge all complaints and decide whether or not they have complied with their requirements under EISRs and give the applicant a response to his or her representations as soon as possible and in any event within 20 working days after the date of receipt.
74. It will be good practice for the Scottish public authority to inform the applicant of the authority's target date for determining the review. This is particularly important if the public authority will take longer than the statutory 20 working days to determine the review. In these cases, the Scottish public authority must notify the applicant of the reason for the delay The applicant should always be informed of the outcome of the review.
75. Records must be kept of all reviews and of their outcome. Scottish public authorities should have procedures in place for monitoring complaints and for reviewing, and, if necessary, amending, procedures for dealing with requests for information where such action is indicated by more than occasional reversals of initial decisions.
76. Where the outcome of a review is that information should be made available which was previously withheld, the information in question should be disclosed as soon as practicable and the applicant should be informed how soon this will be.
77. Where the outcome of a review is that the procedures within a Scottish public authority have not been properly followed by the authority's staff, the authority should explain to the applicant the reason for departure and the steps taken to deal with similar events occurring in future.
78. Where the outcome of a review is that an initial decision to withhold information is upheld, or is otherwise in the Scottish public authority's favour, the applicant should be informed of his or her right to apply to the Scottish Information Commissioner. The applicant should also be given details of how to make an application to the Scottish Information Commissioner for the Commissioner to make a decision on whether the request for information has been dealt with in accordance with the requirements of the EISRs.