STEP-BY-STEP GUIDE TO HANDLING FOI/EIRs REVIEWS
This Guide is designed to take you through each step of handling a request for a
review of the response to a FOI or EIRs request, and tell you what you need to do at
each step. It applies to reviews under both the Freedom of Information (Scotland)
Act 2002 (FOISA); and the Environmental Information (Scotland) Regulations (EIRs).
A PDF version of the Guide is also available. If you are using a print-off of the
PDF version, remember to check that it is up to date.
Using this Guide
It starts with links to some general background information about the review process
and how to use the response templates.
The Checklist below lists each step in the process of handling a review request.
Click on the links for more detailed guidance on each step and for relevant templates
(after using a link, you can use the ‘back’ button on the browser to return to where
you were). Please note that the Checklist is intended to cover all types of
review, so not all steps will be relevant to every review.
If you're just looking for guidance on a specific point, use this Index to go
directly to it.
GENERAL BACKGROUND ON REVIEWS
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What is the review process?
When is a review likely to be requested?
Using templates for responding to review requests, etc.
CHECKLIST FOR HANDLING FOI/EIRs REVIEWS
Receiving request for review
1

Request for review received by Scottish Government –
20 working day period for responding starts immediately.
If deadline is likely to be missed send a holding response.
Guidance: Time limit for responding to review request
Template – FOI – holding response
Template – EIRs – holding response
2
Was the review request addressed to the correct Director
General, Director or agency Chief Executive, as advised in initial
response letter? If not, whoever receives it should forward it
immediately.
Guidance: Who should applicant send review request to?
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1
3
Does the request relate only to a failure to respond? Go straight
to Steps 28-35.
Guidance: If we have failed to respond to a request within 20
working days
4
Does the review request include any new requests for
information?
Guidance: Handling a new information request included in a
review request
5
Director General, Director or agency Chief Executive allocates
reviewer.
Guidance: Who should carry out a review?
6
Has the request for review been made within the 40 working day
time limit?
Guidance: Considering whether review request is valid
If time limit breached, write to applicant asking for explanation.
Template – FOI – outwith time
Template – EIRs – outwith time
7
Is the review request valid?
Guidance: Considering whether review request is valid
If not valid, write to applicant asking them to correct.
Template – FOI – reasons for dissatisfaction not given
Template – FOI – original request not identified
8
Reviewer records date request for review is received on the
Information Request Tracker, and notes date response due (20
working days from first receipt in SG).
Guidance: Updating the FOI Tracker when review request
received
9
Reviewer writes to applicant acknowledging receipt.
Guidance: Acknowledging a review request
Template – FOI – acknowledgement
Template – EIRs – acknowledgement
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2
Reassessment of case by reviewer
10

Reviewer obtains all paperwork about original decision, and the
information requested.
Guidance: Obtaining paperwork
11
Reviewer discusses the case with original request-handler(s).
Guidance: Discussing case
12
If original request was not clear and adequate clarification was not
obtained by request-handler, reviewer should write seeking
clarification (clock does not stop).
Guidance: Obtaining clarification
Template – FOI – requesting clarification
Template – EIRs – requesting clarification
13
Reviewer considers whether original request was handled under
the correct statutory regime, ie FOISA, EIRs or the Data
Protection Act 1998 (DPA).
Guidance: Identifying which statutory regime applies – see Step 3
of the Step-by-Step Guide to Handling FOI/EIRs Requests
14
Reviewer considers whether original request was valid.
Guidance: Checking validity
15
Reviewer establishes whether procedures were properly followed
and all statutory obligations were met.
Guidance: Checking procedures
16
Reviewer checks whether all relevant information was identified.
Guidance: Checking all relevant information identified
17
Reviewer re-considers any FOI exemption(s)/ EIRs exception(s)
and the public interest test.
Guidance: Re-applying exemptions/exceptions and public interest
test
18
Reviewer consider any points made by the applicant in their
review request.
Guidance: Considering applicant’s views
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19
Is it possible to provide additional information?
20
Guidance: Provide additional information?
Is further advice needed from e.g. Director, SGLD or the FOI
Unit?
Guidance: Obtaining further advice
21
Draft review response is prepared by reviewer, using relevant
template.
Guidance: Using templates for review letters
Template – FOI review response (applying exemptions/
exceptions; providing information; procedural failures; and/or
original request invalid)
Template – FOI – original request vexatious
Template – FOI – review request vexatious
Template – EIRs – review response
Issuing result of review
22

Reviewer must clear response with the FOI Unit. You should
also clear response with Minister(s) and/or appropriate senior
official(s) before issue, if necessary. If it was a media request
clear with Comms Team. Remember to allow sufficient time
for this (usually a minimum of 3 working days) to meet the 20
working day deadline.
Guidance: Clearing review response with FOI Unit, Minister(s),
etc
23
Response to be issued by reviewer within 20 working days of
receipt in Scottish Government.
Guidance: Issuing review response
24
If information is to be provided, this should normally be included
with the response.
Guidance: Issuing review response
25
If review finds procedures were not properly followed, the
reviewer should advise the area that originally handled the case.
Guidance: Checking procedures
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26
The reviewer must fully record the review process. All papers
relating to review should be saved with the original case
papers in the eRDM casefile.
Guidance: Recording review process
27
Update FOI Tracker to record outcome of review.
Guidance: Recording review process
Review of a failure to respond
28

Director General, Director or Chief Executive passes review
request to original request-handler.
Guidance: Who should carry out a review of a failure to respond?
29
Request-handler acknowledges review request.
Guidance: Acknowledging a review request
Template – FOI – acknowledgement
Template – EIRs – acknowledgement
30
Request-handler continues to deal with original request, in
accordance with Step-by Step Guide to FOI/EIRs requests.
31
Request-handler drafts a combined response to initial request and
review request, using relevant template.
Guidance: Using templates for review letters
Template – FOI – combined review/request response
Template – EIRs – combined review/request response
32
Request-handler must clear response with the FOI Unit. You
should also clear response with Minister(s) and/or appropriate
senior official(s) before issue, if necessary. If it was a media
request clear with Comms Team. Remember to allow sufficient
time for this (usually a minimum of 3 working days) to meet
the 20 working day deadline.
Guidance: Clearing review response with FOI Unit, Minister(s),
etc
33
Request-handler sends applicant a combined response to initial
request and review request, as soon as possible and certainly
within 20 working days of receipt of review request.
Guidance: Issuing review response
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34
Request-handler must fully record the request/review process.
All papers relating to request/review should be saved in the
eRDM casefile.
Guidance: Recording review process
35
Update FOI Tracker to record outcome of request and review.
Guidance: Recording review process
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INDEX PAGE
GUIDANCE ON DEALING WITH REVIEWS
Introduction
What is the review process? Information about people’s right to request a review
When a review can be requested
Step by Step Guidance – Reviews (see below for reviews about failure to respond)
Receiving a request for a review
Time limit for responding to a review request – 20 working days
Who a review request should be sent to – ensure it can be allocated quickly
Handling a new information request if it is included with a review request
Who should carry out a review
Considering if a review request is valid
Logging a review request on the FOI tracker
Acknowledging a review request – FOI and EIR acknowledgement templates
Reassessment of the request by the reviewer
Obtaining paperwork regarding the original request
Discussing the case with the original request handler
Obtaining clarification from the applicant (if needed)
Checking that the original request was answered under the correct statutory regime
– see Step 3 of the Step-by-Step Guide to Handling FOI/EIRs Requests
Checking that the original request was valid
Checking the correct procedures were followed in handling the original request
Checking all information within the scope of the request has been identified
Reconsidering if exemptions/exceptions apply and the public interest test
Considering any views/points made by the applicant in their review request
Providing additional information to the requester
Obtaining further advice – seek advice from the FOI Unit (and others if needed)
Using templates to prepare your review response – FOI and EIR review templates
Issuing a review response
Clearing your response with Ministers or senior officials
Issuing your review response
Recording the outcome of the review – save records on how the review was
conducted in the eRDM case file and record the outcome on the FOI tracker
Step by Step Guidance – Reviews of a Failure to Respond
Who should deal with a review of failure to respond – original request handler
Acknowledging a review request – FOI and EIR acknowledgement templates
Using Step by Step Guidance for Requests to continue dealing with the request
Use combined request/review FOI or EIR templates for your response
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Clearing your response with Ministers or senior officials
Issuing your response – if information has been released look at publishing it on the
SG website
Recording the outcome of the review – save records on how the request/review was
handled in the eRDM case file and record the outcome on the FOI tracker
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What is the review process?
If an applicant is dissatisfied with the way in which we have dealt with their request
for information, both FOISA and the EIRs give him/her the right to ask us to review
our actions and decisions. The review process allows us to consider the case afresh
and address the matters which have given rise to the applicant’s dissatisfaction. The
relevant Director General, Director or agency Chief Executive will usually appoint a
reviewer to conduct the review – this will be someone who was not involved in the
original decision-making process.
The review process must be fair, independent and consider the case completely
afresh. When carrying out a review the reviewer should follow the steps listed in the
FOI/EIRs Review Checklist (though not all steps will be relevant to every review).
The review should usually conclude with the original decision being either confirmed,
modified, or substituted with a different decision. However, where the review relates
to a failure to respond to the original request, the official dealing with the original
request should undertake a procedural review, and respond explaining the reasons
for the failure, and apologising for it. He/she must also reach a decision on the
original request.
A review response must be issued within 20 working days of when the review
request is first received by the Scottish Government. See Time limit for
responding to review request.
When is a review likely to be requested?
In most instances, a request for a review will be received where the applicant is
unhappy that:
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a FOISA exemption or EIRs exception has been applied and so the information
requested has not been provided;
their FOISA request has been refused because complying with it would exceed
the £600 cost limit;
their FOISA request has been rejected as invalid because it did not describe the
information sought;
their FOISA request has been refused because it was a repeated or vexatious
request;
their EIRs request was refused because it was manifestly unreasonable; or
we have told them we do not hold the information but they believe that we do.
If we have failed to respond to a request within 20 working days, the applicant is also
entitled to request a review of how their request was handled. In such cases, the
official dealing with the original request should undertake a procedural review, and
respond explaining the reasons for the failure, and apologising for it. He/she must
also reach a decision on the original request.
If a FOISA request was refused on the grounds that it was a repeated or vexatious
request, a review does not have to be carried out. In some instances we may also
consider that the request for review itself is vexatious; in these cases we are not
obliged to carry out a review.
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However, if a EIRs request has been refused on the grounds that it was manifestly
unreasonable, we must carry out a review if one is requested. Also, the EIRs do not
allow us to treat a review request itself as vexatious. So, provided the 40 working
day deadline is met, we must always carry out a review of our handling of a EIRs
request, if the applicant asks us to.
Time limit for responding to review request
The response to a review request must be given within 20 working days of the day
when it is first received by the Scottish Government, not when it reaches the
reviewer. That is why it is essential that incorrectly addressed review requests are
redirected to the appropriate Director General, Director or agency Chief Executive as
quickly as possible – see Who should applicant send review request to?
When you log the review request on the Information Request Tracker the date the
response is due will be automatically calculated when you input the ‘date received’.
The Tracker discounts bank holidays, which don’t count as working days. (For a list
of the Scottish Bank Holidays see:
http://www.scotland.gov.uk/Publications/2005/01/bankholidays).
If, at any point, you have reason to believe that the 20 working day deadline will
not be met, send the applicant a holding response to explain the delay and
apologise in advance.
Using templates for review letters
There are two sets of templates: one for FOISA reviews (see Annex A) and one for
EIRs reviews (see Annex B). You should use these templates as the basis for all
your letters or e-mails relating to a request for a review, wherever they are relevant.
There are templates to cover most situations but when using these templates you
must make sure that you take account of the particular circumstances of your case.
So, on some occasions, you may need to adapt the wordings.
In particular, it is of course important to make sure that your review response will be
easily understandable to the applicant, ie it must be clear to them whether or not
they are getting the information they have requested, and if not why not. For
example, if the applicant has made several requests together, you should adapt the
structure of the template to respond to each request separately, rather than giving
one response covering all of the requests together. In such cases, a reasonable
structure would be:
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Opening paragraph – review completed;
Summary of conclusion, ie decision upheld, modified, or replaced;
Request 1 – quote request;
Request 1 – information released/withheld; exemptions/exceptions applied
and reasons; public interest test;
Request 2 – quote request;
Request 2 – information released/withheld; exemptions/exceptions applied
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and reasons; public interest test;
[and so on for each request];
Explanation of any procedural failings and apology;
Concluding paragraph about right to appeal.
Although you must set out which FOISA exemptions or EIRs exceptions have been
applied (if any), explain any legal terminology using Plain English and avoid jargon.
Include an explanation of what the exemption/exception means – do not assume that
the applicant has any knowledge of FOISA or the EIRs.
Who should applicant send review request to?
Normally the applicant will write to the relevant Director General, Director or agency
Chief Executive when they are requesting a review under either FOISA or the EIRs
(in accordance with the details which will have been provided in the original
response letter). If the applicant writes direct to you, or anyone else, requesting a
review, then the review request must be passed on to the DG, Director or Chief
Executive immediately, because the 20 working day period for responding starts
when the Scottish Government first receives the review request, even if it is
incorrectly addressed.
Handling a new information request included in a review request
Sometimes an applicant will include a new request for information in their request for
a review. It is important to look out for such requests and pass them on
immediately to the appropriate business area so that they can respond within
the 20 working day deadline. Any new request included in a review request should
usually be handled separately from the review and must always be logged on the
FOI Tracker as an entirely new request. See step-by-step guide to FOI/EIRs
requests.
Who should carry out a review?
When an applicant requests a review of our response to their FOI/EIRs request, the
relevant Director General or Director or agency Chief Executive will select an officer
to carry out the review, and the office of the DG, Director or Chief Executive should
inform the lead division which handled the original request about the review
request.
The reviewer should, where possible, be someone who was not involved in the
original decision but has sufficient knowledge of the subject. In most instances the
case will be passed to a more senior staff member. The person appointed must
have capacity to undertake the review and report within the 20 working day
deadline. If at any point the reviewer finds that they will not be able to complete the
review on time, they must inform the relevant DG, Director or Chief Executive
immediately, who should then appoint another reviewer who will be able to
complete the review within the deadline.
If the review relates to a failure to respond to the original request, then a
separate reviewer will not be appointed. Instead the official dealing with the
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original request should continue to deal with it. Their response – which must
respond to the original request and explain and apologise for the delay in
responding – will be the review response.
Considering whether review request is valid
To be valid in terms of FOISA, a review request must:
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be made in writing – for example by letter or e-mail, not by telephone – or other
permanent form such as audio or video recording;
provide the applicant’s name and an address for correspondence (an e-mail
address is sufficient);
be made within 40 working days of the applicant receiving our response to their
original request or, if we have not responded to the request, within 40 working
days of the date when we should have responded. We have the discretion to
conduct a review if the request is received outwith 40 working days. However,
we would usually only do so if the applicant has a good reason for missing the
deadline, eg they did not receive our original response; they were unable to
respond for health reasons; they were abroad for an extended period, etc. So
before rejecting a late review request, you should ask the applicant why they
missed the deadline. You should contact the FOI Unit for advice, if you are
considering accepting a late review request;
specify the request for information to which their review request relates;
specify the matter which gives rise to their dissatisfaction, ie explain why they
want a review. However, it should be noted that the applicant does not have
to specifically say they want a review.
Other than the 40 working day deadline, the EIRs do not impose similar
requirements on applicants requesting a review, although EIRs review requests are
usually made in the same way as FOI review requests. However, it is important to
remember that an EIRs review request is valid, so long as it meets the 40 working
day deadline. Under the EIRs, we have no discretion to accept a late review
request. Unlike the original request (which can be made orally), a review request
under the EIRs must be made in writing.
Sometimes an applicant will include a new request for information in their
request for a review. It is important to look out for such new requests and
ensure that they are logged on the FOI Tracker as a separate case and passed
on quickly to the appropriate business area so that they can respond within
the 20 working day deadline.
Updating the FOI Tracker when review request received
If the review request is valid, the reviewer should locate the original request on the
Information Request Tracker and update the case details to record that a review is
underway. An e-mail will be automatically sent to the reviewer’s line manager
advising them about the review. If there are particular sensitivities or complexities
about the review, do not hesitate to give your Minister’s office early notice about the
review and speak with your Director.
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If the review relates to a failure to respond to the original request, the Tracker will not
allow you to record the review until the original request has been responded to. So,
the request response and review decision will need to be recorded at the same time,
after the review response has been sent. In effect, the review response in such
cases will be a combined response to the original request and the review request.
Acknowledging a review request
The reviewer should write to the applicant, as soon as possible, to acknowledge
receipt of the review request and explain that they will be carrying out the review.
Obtaining paperwork
Obtain all paperwork about the original request (this should be in the eRDM casefile
created by the Information Request Tracker), which should show:
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whether the correct procedures were followed;
what information was considered and how it was identified;
how the request was answered;
whether or any information was released;
how any FOISA exemptions or EIRs exceptions were applied;
how the public interest test was applied; and
whether the statutory deadline was met.
The paperwork should include a schedule of all documents which contained any
information within the scope of the original request and a note of whether that
information was considered to be exempt or was released.
Discussing case
Discuss the case with the member of staff who originally handled it, and anyone else
involved in the original decision, to establish what searches were made for relevant
information, what procedures they followed, how and why they arrived at their
decision, etc.
Checking validity
Establish whether the original request was valid, eg did it reasonably clearly describe
the information requested, etc.
Obtaining clarification
Occasionally, you may need to ask the applicant to clarify their original request, if the
original request-handler omitted to do this. However, at review stage the clock does
not stop when clarification is sought, so the review response must still be issued
within 20 working days of receipt of the review request.
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Checking procedures
Consider whether the correct procedures were followed and all statutory obligations
were met, for example:
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was all relevant information found?
was adequate explanation given of why any FOI exemptions/ EIRs exceptions
were applied?
was the public interest test correctly applied?
was adequate explanation given of any other reason(s) for refusal, eg
information not held, cost limit breached, request vexatious or repeated, etc?
was reasonable advice and assistance provided?
was the 20 working day deadline met?
was the applicant told about their right to a review of the decision?
If you identify any errors or omissions, you must tell the business area which dealt
with the original request, so that they can learn the lessons for future requests.
Checking all relevant information identified
Ensure that all relevant, recorded information from every source was identified,
including information held in eRDM, paper files, e-mail folders, the IMPReS records
management system, CDs, memory sticks, etc. E-mails about official business held
in private e-mail accounts (or other media such as texts on mobile phones) will also
need to be considered in some cases, eg where it is likely that a private
communication channel was used because no official channel was available at the
time, an individual was working from home, etc.
Where information is stored in eRDM, ensure that searches were conducted using all
relevant key words. It is helpful (particularly if the applicant subsequently appeals to
the Commissioner) to print a ‘snapshot’ of the eRDM search results and keep it with
the record of the review.
It is also important to consider carefully whether any other staff and/or branches
which may hold relevant information were consulted. Consider whether the request
was correctly interpreted, in the first place. It is not unusual for a request-handler to
interpret a request, either too narrowly or too broadly. Such misinterpretations are
usually made in good faith, eg because a request is not very clearly expressed. In
some cases, the reviewer may need to go back to the applicant to ask them to clarify
the original request – see Obtaining clarification.
Re-applying exemptions/exceptions and public interest test
Consider afresh whether any FOISA exemptions or EIRs exceptions apply – does
the information requested genuinely fall within the exemptions/ exceptions cited in
the response to the original request? Are there any other more appropriate
exemptions/ exceptions which should be applied instead? Or should the information
simply be released?
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Re-apply the public interest test. Is there a public interest in disclosing the
information and does this outweigh the public interest in maintaining the exemptions/
exceptions that have been applied? Has there been any change in circumstances
since the time of the original decision, which would affect the outcome of the public
interest test?
See Guidance on Exemptions and the Public Interest Test.
Considering applicant’s views
Consider any additional points made by the applicant when requesting the review,
and reply to them in the review response. For example, have they raised any issues
which were not considered originally, have they provided any grounds for changing
the original decision, etc?
Provide additional information?
Consider whether it is possible to provide any additional information. For example:
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not all the information may be covered by FOISA exemptions or EIRs
exceptions, or the outcome of the public interest test may have changed – see
Re-applying exemptions/exceptions and public interest test;
it may be possible to redact documents to remove sensitive information, or to
extract non-sensitive information from documents;
there may have there been some changes in circumstances since the original
response, which mean information which had to be withheld previously can
now be released;
it may also be possible to provide factual, statistical, or alternative information
that would help the applicant.
Obtaining further advice
If you need any advice on the review, consult with the relevant Director and, in
complex or sensitive cases, the FOI Unit.
If you need legal advice, consult the FOI Unit as they coordinate the provision of all
legal advice relating to FOI/EIRs requests. Therefore, please do not contact SGLD
directly but instead contact the FOI casework team, who will use the FOI legal
advisers in the first instance. If specialist legal advice is required on a particular
subject, SGLD will liaise internally as appropriate. The subsequent legal advice will
then form part of the advice provided to you by the FOI Unit.
Please remember to request any advice you need as soon as possible, to
ensure that you receive the advice in time to enable you to meet the
20 working day deadline for responding to the review request. The FOI Unit, in
particular, deals with a lot of requests for advice and, to be fair to everyone,
deals with such requests in the order in which they are received. The Unit
tries to respond within 3 working days
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Clearing review response with FOI Unit, Minister(s), etc
Review stage is our last chance to get an FOI/EIRs response right before the
applicant can appeal to the Scottish Information Commissioner. So it is essential to
show that the review has been done fairly and thoroughly, and has considered the
case completely afresh. This can avoid an appeal to the Commissioner or at least
make the appeal easier to handle. To help with this, all review responses must be
cleared with the FOI Unit before they are issued. It is best to do this before it is
sent to Ministers or Special Advisers.
Remember that the review is carried out on behalf of the Scottish Ministers, and
needs to take account of corporate guidance and reach a collective view. In some
cases, the review response will need to be cleared by the relevant Minister(s), senior
management, Special Advisers, other parts of the SG, etc, particularly if there are
any sensitivities or complexities about the case. Directors are normally the main
point of contact with Ministers on FOI issues and should be aware of their
requirements, but refer to your local FOI support arrangements.
Always ensure that you allow sufficient time for obtaining all necessary
clearances, before expiry of the 20 working day deadline for responding to the
review request. In particular, you must give Ministers at least 3 working days
to clear your response.
Following the steps listed below will help to ensure that the process of clearing
review responses with Ministers operates smoothly and without unnecessary delay:
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give the Ministerial private office(s) advance warning that you will be sending
them a submission seeking clearance of a FOI/EIRs review response – this
will help them to ensure that time is found for the Minister to consider it
amongst his/her other commitments;
when sending your submission, remember to take account of Ministerial box
closures, especially at weekends or recess, as these can affect the time it
takes for your submission to reach the Minister;
all Ministerial submissions on FOI requests should be copied to the
Deputy First Minister, as she has portfolio responsibility for FOI;
Ministers often want the views of Special Advisers, so you should also give
them advance notice of the review request, as well as copying them into the
submission. Following the guidance on asking SpAds to comment on FOI
requests will help to ensure that this process doesn’t delay the review
response. Also send a copy to Roxie Pankowiak in the Special Advisers'
Private Office, so that she can provide any assistance which the Special
Adviser(s) or you may need;
if the review request is on a sensitive topic (whether it is likely to attract media
interest or not) consult your Communications Team as soon as possible – see
guidance on ‘Media requests, and requests on sensitive topics’;
think about how the material is presented in your submission – give the
Minister the information he/she needs to make their decision, rather than
overloading them with unnecessary detail. Here are some examples of what
to include in your submission:
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o be clear that it is an internal review (rather than an initial request or
appeal);
o what information was originally requested and how that request was
answered;
o whether you intend to uphold the original decision, modify it, or
substitute an entirely new decision; and explain why;
o whether you are going to release any additional information, and
explain why;
o any other options for responding, and their implications;
o the deadline for responding to the review request and the
consequences of not meeting that deadline;
o relevant background information on the review request and the subject
matter of the information sought.
See the ‘Guidance on Preparation of Submissions to Ministers’ at:
http://intranet/InExec/AboutUs/Directorates/MinisterialSupportGroup/SMSDcabsec/guidancesubtoministers09 and the ‘Submissions
to Ministers - Top Ten Tips’ at:
http://intranet/InExec/AboutUs/Directorates/MinisterialSupportGroup/SMSDcabsec/SubtoMinistersTop10Tips;
when you give the Minister a deadline by which their clearance is needed,
ensure that you allow some time afterwards (at least a day) for any redrafting
or other adjustment of the review response which the Minister may require;
if the Minister has not responded to your submission by the deadline in your
submission, you should contact the private office to check progress.
Issuing review response
In most cases, the response to a request for review should be issued by the
reviewer, and not the official who dealt with the original request. The response
must be issued with 20 working days of when it was first received by the
Scottish Government – see Time limit for responding to review request.
The review response should set out the conclusion of the review – ie whether the
original decision has been confirmed, modified, or substituted with a different
decision – and give the reasons for that conclusion. It must also explain the
applicant’s right to appeal to the Scottish Information Commissioner, and their
subsequent right to make an appeal against the Commissioner’s decision to the
Court of Session on a point of law. If the review has found that the request was not
properly handled, an apology should be given and steps taken to avoid a recurrence.
Where the review has modified or reversed the original decision and is now providing
information which was previously withheld, the information should normally be
enclosed with the review response. It should usually then be published on the
Scottish Government website, with a link to the FOI disclosure log – see publishing
released information and the Disclosure Log.
If the review relates to a failure to respond within the 20 working day deadline,
no reviewer will have been appointed and the response should be issued by
the official handling the original request. The response must explain the
reasons for the failure, apologise for it, and reach a decision on the original
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
17
request. Again, the reply must also explain the applicant's rights to appeal to the
Scottish Information Commissioner and then the Court of Session.
If the review relates to a request from the media, the response will need to be
agreed with the relevant Communications Team and should generally be
issued by them (in the reviewer’s name) – see:
http://sa45eda/freedomofinformation/FOIEIR%20Wiki/Media%20requests.aspx.
Recording review process
The review process should be as transparent as possible and so the reviewer should
keep a complete record of it. This record should be sufficient to demonstrate that the
review has fully reconsidered the request (rather than just ‘rubber stamping’ the
original decision) and show how the review conclusion has been reached. It should
also include the factors that were taken into consideration when deciding on what
FOI exemptions or EIRs exceptions apply and when carrying out the public interest
test.
If a schedule of the information/documents was not produced at the time the original
request was handled, it is important to do this at the review stage, detailing which
exemptions or exceptions have been applied to the withheld information. If the
applicant subsequently appeals to the Scottish Information Commissioner, the
Commissioner may require to see all the relevant paperwork, including a schedule of
the documents considered.
Remember to update the Information Request Tracker with full details about the
review decision. Remember to save all review letters in the eRDM casefile
created by the Information Request Tracker.
If the review relates to a failure to respond to the original request, the Tracker will not
allow you to record the review until the original request has been responded to. So,
the request response and review decision will need to be recorded at the same time,
after the review response has been sent. In effect, the review response in such
cases will be a combined response to the original request and the review request.
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
18
ANNEX A
FOISA REVIEW TEMPLATES
Acknowledgment of request for review of original response (to be sent by
reviewer)
Thank you for your request of <insert date> for a review of our response to
your request under the Freedom of Information (Scotland) Act 2002 (FOISA)
for <insert description of request>.
I have been asked by <insert name of Director or Director General or Chief
Executive> to carry out the review because I was not involved in handling
your original request. I will be looking at the case afresh to establish whether
[the original response should be confirmed, with or without modifications as
appropriate, or a fresh decision should be substituted.]*/[your request was
handled in accordance with our procedures and legislative requirements]*.
We received your review request on <insert date> so I will respond in
accordance with FOISA by <insert date 20 working days from date of receipt –
this is calculated for you when you log the review request on the FOI
Tracker>.
If you have any queries, please contact me quoting case number <insert case
number from FOI Tracker>.
*[delete as appropriate]
Acknowledgment of request for review of failure to respond (to be sent by
official handling original request)
Thank you for your request dated <insert date> for a review of our failure to
respond to your request under the Freedom of Information (Scotland) Act
2002 (FOISA) for <quote original request exactly, unless it is too
long/complicated>.
I have been asked by <insert name of Director or Director General or Chief
Executive> to carry out a review of our failure to respond to your request
within the 20 working day deadline which expired on <insert date as given in
Tracker>. I will establish the reasons for our failure to respond on time and, in
accordance with section 21(4) of FOISA, I will also reach a decision on your
request.
We received your review request on <insert date> so I will respond in
accordance with FOISA by <insert date 20 working days from date of receipt –
this is calculated for you when you log the review request on the FOI
Tracker>.
If you have any queries, please contact me quoting case number <insert case
number from FOI Tracker>.
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
19
ANNEX A
Response when review request is invalid because it does not give reasons for
dissatisfaction
Thank you for your request of <insert date> for a review of our response to
your request under the Freedom of Information (Scotland) Act 2002 (FOISA)
for <insert description of request>.
I have been asked by <insert name of Director or Director General or Chief
Executive> to carry out the review because I was not involved in handling
your original request. When I receive the clarification I have requested from
you below, I will be looking at the case afresh to establish whether [the
original response should be confirmed, with or without modifications as
appropriate, or a fresh decision should be substituted.]*/[your request was
handled in accordance with our procedures and legislative requirements]*.
A review request is not valid if it does not, in accordance with
section 20(3)(c)(ii) of FOISA, specify the reason(s) for the applicant’s
dissatisfaction with the way in which the public authority dealt with their
request. As your review request does not explain why you are dissatisfied
with the decision notified in our letter of <insert date of response to original
request>, we do not consider it to be a valid review request. Accordingly, I am
currently unable to carry out the review.
Therefore, I would be grateful if you would clarify what aspect of our actions
and/or decisions you are dissatisfied with. Once I have received that
clarification from you, I will be able to review the case and give you my
decision within 20 working days.
If you need any further advice and assistance to clarify your review request,
please contact me.
If you are unhappy with this response to your review request you have the
right to appeal to the Scottish Information Commissioner about our decision
within 6 months of receiving this letter. You can contact the Commissioner at:
The Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
E-mail:
enquiries@itspublicknowledge.info
Telephone: 01334 464610
Should you then wish to appeal against the Commissioner's decision, there is
a right of appeal to the Court of Session on a point of law only.
*[delete as appropriate]
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
20
ANNEX A
Response when review request is invalid because it does not specify the
request to which it relates
Thank you for your request of <insert date> for a review of our response to
your request under the Freedom of Information (Scotland) Act 2002 (FOISA)
for <insert description of request>.
I have been asked by <insert name of Director or Director General or Chief
Executive> to carry out the review because I was not involved in handling
your original request. When I receive the further details I have requested from
you below, I will be looking at the case afresh to establish whether [the
original response should be confirmed, with or without modifications as
appropriate, or a fresh decision should be substituted.]*/[your request was
handled in accordance with our procedures and legislative requirements]*.
A review request is not valid if it does not, in accordance with
section 20(3)(c)(i) of FOISA, specify the request to which it relates. As your
review request does not identify the request which you would like us to
review, it is not a valid review request. Accordingly, I am currently unable to
carry out the review.
Therefore, I would be grateful if you would provide us with some further
details to enable us to identify the request you want us to review, eg a
description of the information you originally requested, or the case reference
number from our response, or the date of our response and the name of the
official who signed it. Once I have received that clarification from you, I will be
able to review the case and give you my decision within 20 working days.
If you need any further advice and assistance to clarify your review request,
please contact me.
If you are unhappy with this response to your review request you have the
right to appeal to the Scottish Information Commissioner about our decision
within 6 months of receiving this letter. You can contact the Commissioner at:
The Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
E-mail:
enquiries@itspublicknowledge.info
Telephone: 01334 464610
Should you then wish to appeal against the Commissioner's decision, there is
a right of appeal to the Court of Session on a point of law only.
*[delete as appropriate]
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
21
ANNEX A
Response when review request is invalid because it is outwith time
Thank you for your request of <insert date> for a review of our response to
your request under the Freedom of Information (Scotland) Act 2002 (FOISA)
for <insert description of request>.
I have been asked by <insert name of Director or Director General or Chief
Executive> to respond to your review request because I was not involved in
handling your original request.
Under section 20(5) of FOISA a request for a review of an authority’s
response to a FOI request must be made within 40 working days of the date
on which the response was received. As your review request was dated
<insert date>, which was <insert number> working days after <insert date of
response> when our response was sent, it would appear that you have
missed the deadline for requesting a review.
However, under section 20(6) of FOISA, we can accept a late review request
if we consider it appropriate to do so. If you would like to explain why you
were unable to send us your review request on time, we will be happy to
consider whether it would be appropriate to accept it.
If you need any further advice and assistance to enable you to provide the
explanation I have requested, please contact me.
If you are unhappy with this response to your review request you have the
right to appeal to the Scottish Information Commissioner about our decision
within 6 months of receiving this letter. You can contact the Commissioner at:
The Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
E-mail:
enquiries@itspublicknowledge.info
Telephone: 01334 464610
Should you then wish to appeal against the Commissioner's decision, there is
a right of appeal to the Court of Session on a point of law only.
Response where review request is not being complied with because original
request was vexatious or a repeat
Thank you for your request of <insert date> for a review of our response to
your request under the Freedom of Information (Scotland) Act 2002 (FOISA)
for <insert description of request>.
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
22
ANNEX A
I have been asked by <insert name of Director or Director General or Chief
Executive> to respond to your review request because I was not involved in
handling your original request.
Under section 21(8)(b) of FOISA a public authority is not obliged to comply
with a review request if it refused the original request under section 14
because it was [vexatious/ a repeat of a previous request with which it had
already complied]*. As your original request was refused on that basis and
there is nothing in your review request which would provide grounds to
suggest that our decision was incorrect, we consider that we are not obliged
to comply with your review request.
If you are unhappy with this response to your review request you have the
right to appeal to the Scottish Information Commissioner about our decision
within 6 months of receiving this letter. You can contact the Commissioner at:
The Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
E-mail:
enquiries@itspublicknowledge.info
Telephone: 01334 464610
Should you then wish to appeal against the Commissioner's decision, there is
a right of appeal to the Court of Session on a point of law only.
*[delete as appropriate]
Response where review request is not being complied with because it is
vexatious
Thank you for your request of <insert date> for a review of our response to
your request under the Freedom of Information (Scotland) Act 2002 (FOISA)
for <insert description of request>.
I have been asked by <insert name of Director or Director General or Chief
Executive> to respond to your review request because I was not involved in
handling your original request.
Under section 21(8)(a) of FOISA a public authority is not obliged to comply
with a review request if it is vexatious.
The Scottish Information
Commissioner’s guidance on vexatious requests at:
http://www.itspublicknowledge.info/Law/FOISAEIRsGuidance/Section14/Section14Overview.asp says that “to be ‘vexatious’
the Commissioner considers that a request must (a) impose a significant
burden on a public authority and (b) meet one or more of the other criteria
described.”.
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
23
ANNEX A
<Insert explanation of why the review request imposes a significant burden,
then explain which of the other criteria apply and why.> For these reasons,
we consider that your review request is vexatious and we are not obliged to
comply with it.
If you are unhappy with this response to your review request you have the
right to appeal to the Scottish Information Commissioner about our decision
within 6 months of receiving this letter. You can contact the Commissioner at:
The Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
E-mail:
enquiries@itspublicknowledge.info
Telephone: 01334 464610
Should you then wish to appeal against the Commissioner's decision, there is
a right of appeal to the Court of Session on a point of law only.
Letter asking for clarification of original request
I refer to my letter of <insert date of acknowledgement> about your request for
a review of our response to your request under the Freedom of Information
(Scotland) Act 2002 (FOISA) for <insert description of request>.
From my initial look at this case, I have established that, in order to identify and
locate the information that you asked for, we should have asked you for some
further information. <Add an explanation of why this is the case.> In particular,
it we should have asked for <insert an indication of the sort of information that
should have been required to deal with the request properly>. You may find it
helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting
information
under
FOI
and
the
EIRs’
on
her
website
at:
http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.
I apologise that we did not ask you for this information before. If you could
provide it now, that would help me to complete my review. In the meantime I
will continue with the review and let you know the outcome by <insert date 20
working days from date of receipt – this is calculated for you when you log the
review request on the FOI Tracker>.
If you wish to discuss any of the above, please contact me.
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
24
ANNEX A
Holding response when review deadline is going to be missed
I refer to my letter of <insert date of acknowledgement> about your request for
a review of our response to your request under the Freedom of Information
(Scotland) Act 2002 (FOISA) for <insert description of request>.
Under section 21(1) of FOISA, our response to your review request is due on
<insert date 20 working days from date of receipt – this is calculated for you
when you log the request on the FOI Tracker>. Unfortunately, it is taking longer
than expected to carry out the review because <if possible, insert brief
explanation>. I apologise for this delay and hope to be able to send you my
decision by <insert approximate but realistic date or, if this is not possible, say
‘shortly’>.
Response to request for review of original response (to be sent by reviewer)
Further to my letter of <insert date of acknowledgement>, I have now
completed my review of our response to your request under the Freedom of
Information (Scotland) Act 2002 (FOISA) for <insert description of request>.
I have concluded that [the original decision should be confirmed, [with/without]
modifications]*/[a different decision should be substituted.]*/[your request was
correctly handled in accordance with our procedures and legislative
requirements]*.
<Provide an explanation of the decision and how it was reached, including as
appropriate:
 if exemptions and the public interest test have been reconsidered,
explain your reasoning. In particular, explain any change in the
exemptions being applied;
 if information is now to be provided, include a description and enclose
the information with this response;
 if the review has found that the request was not properly handled
provide an apology for this and explain the steps which will be taken to
avoid a recurrence;
 if the review has found that the original request was invalid, explain
why.
You may find parts of the templates for initial FOISA responses helpful here.>
<Response to any specific points raised by the applicant in their request for
review, which are not answered by explanation above.>
If you are unhappy with the outcome of this review you have the right to
appeal to the Scottish Information Commissioner about our decision within
6 months of receiving this letter. You can contact the Commissioner at:
The Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
25
ANNEX A
Fife
KY16 9DS
E-mail:
enquiries@itspublicknowledge.info
Telephone: 01334 464610
Should you then wish to appeal against the Commissioner's decision, there is
a right of appeal to the Court of Session on a point of law only.
*[delete or amend as appropriate]
Response to request for review of failure to respond (to be sent by official
handling original request)
Further to my letter of <insert date of acknowledgement>, I have now
completed my review of our failure to respond to your request under the
Freedom of Information (Scotland) Act 2002 (FOISA) for <insert description of
request>.
In accordance with section 21(4) of FOISA, I have also reached a decision on
your request.
<Apologise for the delay in responding and provide an explanation of the
reasons.>
I can now provide our response to your original request. <Use whichever parts
of the templates for initial FOISA responses are appropriate to the decision
you have reached.>
If you are unhappy with the outcome of this review you have the right to
appeal to the Scottish Information Commissioner about our decision within
6 months of receiving this letter. You can contact the Commissioner at:
The Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
E-mail:
enquiries@itspublicknowledge.info
Telephone: 01334 464610
Should you then wish to appeal against the Commissioner's decision, there is
a right of appeal to the Court of Session on a point of law only.
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
26
ANNEX B
EIRs REVIEW TEMPLATES
Acknowledgment of request for review of original response (to be sent by
reviewer)
Thank you for your request of <insert date> for a review of our response to
your request under the Environmental Information (Scotland) Regulations
2004 (EIRs) for <insert description of request>.
I have been asked by <insert name of Director or Director General or Chief
Executive> to carry out the review because I was not involved in handling
your original request. I will be looking at the case afresh to establish whether
[the original response should be confirmed, with or without modifications as
appropriate, or a fresh decision should be substituted.]*/[your request was
handled in accordance with our procedures and legislative requirements]*.
We received your review request on <insert date> so I will respond in
accordance with the EIRs by <insert date 20 working days from date of receipt
– this is calculated for you when you log the review request on the FOI
Tracker>.
If you have any queries, please contact me quoting case number <insert case
number from FOI Tracker>.
*[delete as appropriate]
Acknowledgment of request for review of failure to respond (to be sent by
official handling original request)
Thank you for your request dated <insert date> for a review of our failure to
respond to your request under the Environmental Information (Scotland)
Regulations 2004 (EIRs) for <quote original request exactly, unless it is too
long/complicated>.
I have been asked by <insert name of Director or Director General or Chief
Executive> to carry out a review of our failure to respond to your request
within the 20 working day deadline which expired on <insert date as given in
Tracker>. I will establish the reasons for our failure to respond on time and, in
accordance with regulation 16(3)(b) of the EIRs, I will also reach a decision on
your request.
We received your review request on <insert date> so I will respond in
accordance with the EIRs by <insert date 20 working days from date of receipt
– this is calculated for you when you log the review request on the FOI
Tracker>.
If you have any queries, please contact me quoting case number <insert case
number from FOI Tracker>.
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
27
ANNEX B
Response when review request is invalid because it is outwith time
Thank you for your request of <insert date> for a review of our response to
your request under the Environmental Information (Scotland) Regulations
2004 (EIRs) for <insert description of request>.
I have been asked by <insert name of Director or Director General or Chief
Executive> to respond to your review request because I was not involved in
handling your original request.
Under regulation 16(2) of the EIRs a request for a review of an authority’s
response to an EIRs request must be made within 40 working days of the
date on which the response was received. As your review request was dated
<insert date>, which was <insert number> working days after <insert date of
response> when our response was sent, it would appear that you have
missed the deadline for requesting a review. Therefore, I am unable to carry
out a review in accordance with the EIRs.
If you are unhappy with this response to your review request you have the
right to appeal to the Scottish Information Commissioner about our decision
within 6 months of receiving this letter. You can contact the Commissioner at:
The Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
E-mail:
enquiries@itspublicknowledge.info
Telephone: 01334 464610
Should you then wish to appeal against the Commissioner's decision, there is
a right of appeal to the Court of Session on a point of law only.
Letter asking for clarification of original request
I refer to my letter of <insert date of acknowledgement> about your request for
a review of our response to your request under the Environmental Information
(Scotland) Regulations 2004 (EIRs) for <insert description of request>.
From my initial look at this case, I have established that, in order to identify and
locate the information that you asked for, we should have asked you for some
further information. <Add an explanation of why this is the case.> In particular,
it we should have asked for <insert an indication of the sort of information that
should have been required to deal with the request properly>. You may find it
helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting
information
under
FOI
and
the
EIRs’
on
her
website
at:
http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
28
ANNEX B
I apologise that we did not ask you for this information before. If you could
provide it now, that would help me to complete my review. In the meantime I
will continue with the review and let you know the outcome by <insert date 20
working days from date of receipt – this is calculated for you when you log the
review request on the FOI Tracker>.
If you wish to discuss any of the above, please contact me.
Holding response when review deadline is going to be missed
I refer to my letter of <insert date of acknowledgement> about your request for
a review of our response to your request under the Environmental Information
(Scotland) Regulations 2004 (EIRs) for <insert description of request>.
Under regulation 5(2)(a) of the EIRs, our response to your review request is due
on <insert date 20 working days from date of receipt – this is calculated for you
when you log the request on the FOI Tracker>. Unfortunately, it is taking longer
than expected to carry out the review because <if possible, insert brief
explanation>. I apologise for this delay and hope to be able to send you my
decision by <insert approximate but realistic date or, if this is not possible, say
‘shortly’>.
Response to request for review of original response (to be sent by reviewer)
Further to my letter of <insert date of acknowledgement>, I have now
completed my review of our response to your request under the
Environmental Information (Scotland) Regulations 2004 (EIRs) for <insert
description of request>.
I have concluded that [the original decision should be confirmed, [with/without]
modifications]*/[a different decision should be substituted.]*/[your request was
correctly handled in accordance with our procedures and legislative
requirements]*.
<Provide an explanation of the decision and how it was reached, including as
appropriate:
 if exceptions and the public interest test have been reconsidered,
explain your reasoning. In particular, explain any change in the
exceptions being applied;
 if information is now to be provided, include a description and enclose
the information with this response;
 if the review has found that the request was not properly handled
provide an apology for this and explain the steps which will be taken to
avoid a recurrence.
You may find parts of the templates for initial EIRs responses helpful here.>
<Response to any specific points raised by the applicant in their request for
review, which are not answered by explanation above.>
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
29
ANNEX B
If you are unhappy with the outcome of this review you have the right to
appeal to the Scottish Information Commissioner about our decision within
6 months of receiving this letter. You can contact the Commissioner at:
The Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
E-mail:
enquiries@itspublicknowledge.info
Telephone: 01334 464610
Should you then wish to appeal against the Commissioner's decision, there is
a right of appeal to the Court of Session on a point of law only.
*[delete or amend as appropriate]
Response to request for review of failure to respond (to be sent by official
handling original request)
Further to my letter of <insert date of acknowledgement>, I have now
completed my review of our failure to respond to your request under the
Environmental Information (Scotland) Regulations 2004 (EIRs) for <insert
description of request>.
In accordance with regulation 16(3)(b) of the EIRs, I have also reached a
decision on your request.
<Apologise for the delay in responding and provide an explanation of the
reasons.>
I can now provide our response to your original request. <Use whichever parts
of the templates for initial EIRs responses are appropriate to the decision you
have reached.>
If you are unhappy with the outcome of this review you have the right to
appeal to the Scottish Information Commissioner about our decision within
6 months of receiving this letter. You can contact the Commissioner at:
The Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews
Fife
KY16 9DS
E-mail:
enquiries@itspublicknowledge.info
Telephone: 01334 464610
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
30
ANNEX B
Should you then wish to appeal against the Commissioner's decision, there is
a right of appeal to the Court of Session on a point of law only.
Step-by-Step Guide to FOI/EIRs Reviews – July 2013
31