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Appeals against refusal or improper processing of information requests

Access to information is a basic right; the restriction or violation of this right requires legal remedies. The remedies can take various forms but the most common are:

  • an administrative appeal
  • a court appeal
  • an ombudsman procedure
1

To whom can you appeal?

In the event of a refusal of an information request, the forms of appeal available to you will depend on the legislation under which you made your request.

In many countries, failing to provide information requested, or providing incomplete information in response to a request, is an administrative decision which can be appealed before a higher level administrative body.  It may also be possible to appeal to an official such as an Ombudsman or an Information Commissioner.

If you are still unsatisfied with the outcome of your appeal, you can go further and appeal this second decision before a court.

Some administrative laws also provide for the administrative body who refused your information request to revise its own decision – effectively, to change its mind. You can thus obtain the information you need without further appeals.

In some legal systems, you do not have to appeal against a refusal within the administrative system in question. Instead,  you can take your case directly to the courts and litigate through the various levels of your judicial system.

Another option is to file a complaint with the ombudsman (sometimes also called Information Commissioner). S/he investigates what happened and issues a recommendation or an opinion that the body in question should comply with.

2

When can you appeal?

Usually there are deadlines set by law within which you have to file your appeal.

The ombudsman procedures are less strict and deadlines may play less of a role, but it depends on the legislation of the country concerned.

3

What matters can you raise in an appeal?

You can raise any issue in your appeal regarding the difference between what you requested and what your received. For example, you can complain that:

  • You didn’t receive any reply at all
    You received a reply, but it was a refusal
  • You received a reply, but it was a refusal without giving sufficient reasons why you cannot obtain the information
  • You received a reply, it was a partial refusal, you couldn’t get all the information you wanted to obtain
  • You received the information you needed, but the requested body charges a fee that you are not willing to pay
  • You received the information you requested, but it was not in a useful format.
4

Is a lawyer needed to make an appeal?

A lot depends on the legal system of the country where you filed your information request. Normally you won’t need a lawyer to turn to the ombudsman or to the Information Commission(er), either to file an administrative appeal or to file a court appeal.

However, even if you don’t need one, a lawyer or somebody experienced in the field of freedom of information can be very helpful when you formulate your appeal. They can help highlight the weaknesses of the decision you want to appeal and may find additional arguments.

They can also identify formal or procedural errors you might have missed which may prove that the refusal of your request was contrary to the law. Legal representation may also be mandatory if you further appeal to higher level courts.

5

What will an appeal cost, and how long will it last?

Taking a case to the ombudsman or the Information Commission(er) is generally free of charge.

For an administrative appeal or for the court appeal, the administrative agency or the court concerned may charge a fee. You can find out before the appeal how high these fees are as they are defined by law.

Depending on the legal system, fee waivers are often available based either on the type of case (right of access to information) or on the status of the person appealing (low income individuals, non-profit organisations, etc).

In some countries, not only may the court charge a fee but you may have to pay the legal costs of the opponent’s lawyer if you lose the case. If you have a lawyer s/he will be able to give an estimation of how much this will cost.

6

What can an appeal achieve?

Positive results:

A lot depends on your original information request.

If you filed a well-thought-out, clear and precise request and you requested information that does not fall under an legally-recognised exception, you have a good chance of a successful appeal.

The outcome will also depend on the existence of an independent appeal body or court.

Ideally, your appeal will result in obtaining the full information you requested. However, some parts of the information may fall under an exception and may legitimately be withheld.

It is a common feature of right to information laws to require that the information provided in response to a request has to be truthful and accurate.

Once you have obtained the information, it is your right to share it freely with anybody.

If you appealed for a review of costs that the requested public body has charged for copying the information or documents, a successful appeal may reduce these costs.

 

Negative results

Appeals are not always successful. If you only partially succeeded before a lower court and consider an appeal in the hope of a complete victory, you may be disappointed. The outcome on appeal may be worse rather than better.

Remember too that the other side may also appeal. In general, the body from which you requested information also has the right to appeal against a court order to disclose information. They often do so, forcing you back to court. You may then need to hire a lawyer, so take this into account in your financial planning.

7

Getting help with an appeal

Generally it is useful to consult a lawyer when you appeal. In countries with freedom of information legislation, you will find at least a handful of lawyers familiar with this law.

A good place to start is with non-governmental organisations (NGOs) specialised in freedom of information or freedom of expression. Often, non-lawyers working in these NGOs are also knowledgeable and can help you with your appeal or can recommend a good lawyer.

Investigative journalists also work together with lawyers specialised in this field; it is worth asking them for help finding a right to information lawyer.

8

Destruction of documents

If you discover that the documents you requested have been deliberately destroyed in response to your request, check the law or consult a criminal law expert. It is often forbidden for civil servants to destroy documents except in clearly defined circumstances (for example, after a set number of years).

You may be able to report the situation to the police or prosecutors.

9

Systematic failure to respond to requests

If you notice that a particular body is systematically failing to comply with its duty to handle requests for information properly, there may be bodies to which you can complain about this, such as the freedom of information commission(er), the national ombudsman or the public advocate, if these bodies exist in your country.

See above point 3: “What matters can you raise in an appeal?” for examples of not handling information requests properly.

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