If your request is not answered (“administrative silence”) or if the public institution refuses to provide you with the information, or if the answer doesn’t really answer your question, you may want to appeal.

The rules for appealing vary from country to country. Annex D has a list of all the 40 Council of Europe Countries which have access to information rules and summarises the appeals procedure as well as giving links to the relevant oversight bodies. It is advisable to check the rules and timeframes for appealing in your country before you file a request or as soon as you have filed it. That way you will know when to expect a response and you will be ready to file the relevant appeal. 

There are four main appeals mechanisms:

• Internal or Administrative Appeal: this is an appeal to the same body which issued the denial or to the immediately superior administrative body. It may seem strange to appeal to the same body, but it signals to them that you are serious about defending your right and can often result in a change of mind. In any case, in most countries the request for internal review is required before filing an appeal to the information commissioner, ombudsman, or courts. Sometimes however, an appeal may be made directly to the information commissioner or ombudsman. Annex D lists these options.
  
  
• Administrative Court Appeal: in many countries, particularly those without an information commission or ombudsman responsible for overseeing the access to information law, the next step is an appeal to the courts. Normally access to information appeals are regulated by administrative law, and so appeals should be made to the regional or national administrative court, with a further appeal to a higher court usually possible. In 11 Council of Europe countries court appeals are the only option.
  
  
• Information Commission/er: these are specialised bodies whose role is to defend the public’s right to know. Often the body is combined with that of a data protection oversight body. 13 Council of Europe countries have a specialised oversight body. Some can issue binding decisions, others can only make recommendations. In some countries, the decisions of the Information Commissioners can be appealed to the courts.
  
  
• Ombudsman: In many countries the Ombudsman plays the role of protecting the rights of citizens and residents in their interactions with public bodies. In 13 of these countries, the Ombudsman also has the role of receiving complaints related to the access to information requests. Often the Ombudsman’s Office can only issue recommendations although their power to criticise means that in many countries the public authorities will comply with these recommendations. At the EU level as well, the European Ombudsman will process complaints related to access to documents requests.

Box D: Appeals mechanism in the countries of the Council of Europe region.

You can find out more details in Annex D.

Figure 2: Appeals Process step-by-step

In most countries there are two or three steps to the appeals process, shown in the diagram below:



Filing internal administrative appeals is normally quite easy and free of charge (there are exceptions such as Ireland where it costs €75 which is a huge disincentive to defending your right to know!). Sometimes it helps however to have the advice of a lawyer or specialist organisation. If in doubt, contact the Legal Leaks Team and we will try to put you in touch with someone in your country who can help you.

Appeals to higher courts and to the European Court of Human Rights can take a long time (even years!) but are well worth considering for two reasons. First, they contribute to the long term development of the right of access to information. Second: launching an appeal makes a good story and can have immediate political impact even though you are still waiting for the formal legal decision!