Home Your Rights

Appeal to the Commissioner

Appeal to the Commissioner

If you're still unhappy after the review stage, you can appeal to the Commissioner.

You must make your appeal within 6 months of when you received (or should have received) your review response, and your appeal must be "valid" - see our guidance below on how to make a valid appeal.

Please note that appeals to the Commissioner are currently taking longer to resolve than we would like. This is a result of an increase in the number of appeals being received, alongside a high existing caseload following the pandemic. Please be assured, however, that our team is working hard to address this, and we hope to return to our normal level of service soon. In the meantime, we thank you for your patience.

How to make an appeal

We recommend that you use our application form. You don't have to use this method, but if you do it will help to make sure you provide all of the information the Commissioner needs to investigate your case quickly.

Download our application form

If you don't use the form, your appeal must be in a format that can be kept for future use, for example, by email or post or in an audio or video recording.

You first need to check that you can make an appeal.

What is a valid appeal?

A valid appeal is one where you:

  • have been through the authority's review procedure
  • provide the Commissioner with the information needed to investigate your complaint
  • have told the Commissioner what you are unhappy with.

Your appeal is most likely to be valid if you use our application form.

Ask yourself all of the questions below to check if your appeal is valid. Alternatively, you can download our detailed guidance on making a valid appeal.

Does my appeal concern a Scottish public authority?

The Commissioner can only investigate appeals about Scottish public authorities that are subject to FOISA or the EIRs. There are also some limited circumstances where the Commissioner does not have the power to investigate.

You must be able to answer YES to these questions:

  • Is the organisation a Scottish Public Authority subject to FOISA or the EIRs? Find out more about who is covered.
  • Is the organisation one that the Commissioner can investigate? See 'When we can't investigate' below.
Have I taken into account the FOI timescales?

FOISA and the EIRs set timescales about when you can request a review and when you can make your appeal.

For example, the Commissioner cannot take action until you have asked the authority to review its decision and allowed 20 working days for it to reply. If the authority replies before the 20 working days are up, you can go straight to the Commissioner.

When calculating working days, remember to exclude public holidays, and if you submitted a request or asked for a review by post, allow 3 working days each way for delivery.

You must be able to answer NO to these questions:

  • Was your request for a review made too early or too late?
  • Are you too early or too late making your appeal?
What needs to be in my initial request?

You must be able to answer YES to these questions:

  • Is the request in writing? (This is not a requirement for EIRs requests)
  • Does the request describe the information I'm looking for?
  • Have you provided, in the body of the request: your real name and an address for correspondence?

Find out more about how to ask for information.

What needs to be in my request for a review?

You must be able to answer YES to these questions:

  • Did you make the request for a review in writing?
  • Does the request for review say: why you are unhappy, and which request the review is about?
  • Have you provided, in the body of the request for review: your real name and an address for correspondence?

Find out more on how to ask for a review if you are unhappy.

What needs to be in my appeal?

The best way to make sure your appeal is valid is to use the Commissioner's application form. You don't need to use this method, but it will help to make sure you provide all of the information the Commissioner needs to investigate your case quickly.

You must be able to answer YES to these questions: 

  • Is the appeal made using the application form, or in another written or recorded format?
  • Does the appeal say which request your appeal is about, and why you are unhappy with the response to your request for review?
  • Have you provided, in the body of the appeal, your real name and an address for correspondence?
  • Have you included copies of your original request, the authority's response, your request for review, and the authority's response to your review request?

Animated guide - How do I appeal?

Appealing without an application form

This explains how to appeal to the Commissioner without an application form.

We recommend you use the form if you can because it provides helpful guidance on the information we need to take your case forward.

How to appeal without a form

Your application must be made in writing (letter or email), or any other format which can be kept for future use e.g. an audio or video recording. Here is a list of what you must provide:

About you

  • Full name
  • Address, including postcode
  • Contact phone number
  • Email address
  • If you are making the request on behalf of someone else or an organisation, their name
  • How you would like us to contact you

About your information request and your request for review

  • The name of the authority you made your request to
  • The date you made your request
  • Did the authority respond to your request?
  • The date of the authority’s response (if one was provided)
  • Why you asked the authority for a review
  • Did the authority carry out a review and respond to you?
  • The date of the authority’s response (if one was provided)

About your application

  • Why you are unhappy with the way the authority responded to your request for review.

How we investigate your application

Once we are satisfied that your application is valid, we will contact the authority to let them know you have made an application to us.  The authority will be provided with a copy of your application.  At the same time, the authority will be asked to provide comments on your application and, if the authority has refused to disclose information because it believes it is exempt from disclosure, we will get a copy of the information.

 Further information on how your application will be investigated can be found here: What happens next? A guide for applicants

When we can't investigate

Under section 48 of FOISA, there are some limited circumstances where the Commissioner does not have the power to investigate.

The Commissioner can't investigate appeals about the handling of information requests by:

The Lord Advocate, Crown Office or a Procurator Fiscal

When we do get applications about these bodies, we will ask them to confirm whether a response has been made. If there has been an unacceptable level of failure to respond on time the Commissioner may issue an enforcement notice.

The Commissioner's own office

Because we can't investigate our own handling of information requests, we take particularly great care at the review stage to make sure that we look in detail at every issue in the handling of information requests.

You can download and read our internal procedures here: Responding to Information Requests

Your Right to Know (BSL) - What if I'm still unhappy?