On cases where we have dealt with a FOI/EIR request or a subject access request and the complainant appeals to the Information Commissioner’s office, we have to allow further time after the Commissioner’s decision before disposing of case material to allow for any further appeals to be made.

FOI/EIR

A.1 After notification of an ICO’s decision, allow six weeks for an appeal to be made to the First Tier Tribunal. (An appellant in an FOI/EIR case has 28 days to appeal to the First Tier Tribunal after a decision has been made by the ICO.)

• If we are not notified of an appeal within six weeks, the material can then be disposed of.
• If we are notified of an appeal, the case material must be kept until the Tribunal has made its decision.

A.2 After the First Tier Tribunal has made a decision, keep the file another six weeks to allow the appellant to seek permission to appeal to the Upper Tier Tribunal. (The appellant has 28 days to apply to the First Tier Tribunal for permission to appeal to the Upper Tier Tribunal. The Tribunal can decide to grant permission or not, or it may review the decision itself.)

• If we are not notified that the appellant is seeking permission within six weeks, the material can be disposed of.
• If notified that the appellant is seeking permission, we must keep the material until a decision is made, and if the First Tier Tribunal does its own review, await the outcome.
• After the outcome of any review by the First Tier Tribunal is known, allow a further six weeks, as the appellant still has rights to seek permission to appeal to the Upper Tier Tribunal.

A.3 If permission to appeal to the Upper Tier Tribunal is granted, allow a further six weeks for the appeal to be lodged (the appellant has a month to do this.) Assuming the appeal is lodged, we must retain the material until a decision is made.

A.4 If permission to appeal to the Upper Tier Tribunal is refused, allow a further six weeks for the appellant to apply to the Upper Tier Tribunal for permission to lodge an appeal with it. (The appellant has a month to seek permission and lodge the appeal in one step.) If we are notified that permission is being sought, we must keep the material until a decision is made, and if granted, until the appeal has been heard and decided.

A.5 Finally, when the matter is concluded at the Upper Tier Tribunal, allow a further six weeks in case the decision is appealed to the Court of Appeal on a point of law. (The appellant has a month to apply to the Upper Tribunal judge for permission to appeal to the Court of Appeal.)

• If we are not notified that the appellant is seeking permission within six weeks, the material can be disposed of
• If we are notified that the appellant is seeking permission, we must keep the material until a decision is made, and if permission is granted, until after the appeal has been heard in court.

DPA

The subject has no appeal rights to the First Tier Tribunal, so the only appeal would be to the courts on a point of law. Allow six weeks after a case has been closed following the ICO’s decision for the appellant to seek permission to lodge an appeal with the Court of Appeal.

• If we are not notified that the appellant is seeking permission within six weeks, the material can be disposed of
• If we are notified that the appellant is seeking permission, we must keep the material until a decision is made, and if permission is granted, until after the appeal has been heard in court.

Setting the correct action on the ‘Other contact’ screen on ECHO will deal with all these eventualities.

March 2024