[reposted from LinkedIn]
Can the Information Commissioner’s Office (ICO) withdraw or amend a decision notice it has issued under section 50 of the Freedom of Information Act 2000? And, if not, why not?
This FOI disclosure by the ICO states the orthodox (and surely correct) position that, once a section 50 decision has been made, “the Commissioner has discharged his duties under section 50…We can only act in accordance with our powers under the legislation. There is no provision in the FOIA that allows the Commissioner to amend or cancel a DN once it has been issued.”
But the letter goes on to say “…it [is not] accurate to say there is a law that prohibits us from amending a DN”. This is, to the contrary, surely incorrect: there may be no express statutory provision, but common law doctrine of “functus officio” applies.
Functus officio applies where “a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it” (R (Commissioner of Police of the Metropolis) v Independent Police Complaints Commission [2015] EWCA Civ 1248, [2016] PTSR 891).
Although there may be exceptions where the decision has been obtained by fraud or it is based on a fundamental mistake of fact (R (Sambotin) v Brent London Borough Council [2018] EWCA Civ 1826, [2019] PTSR 371), the doctrine is most certainly “a law that prohibits” the ICO from amending a decision notice.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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