[2025] UKFTT 01265 (GRC)

This is an appeal against a decision of the Information Commissioner (“the Commissioner”) dated 16 December 2024, reference IC-320021-Q5B0 (“the Decision Notice”).

The hearing took place via Cloud Video Platform on Wednesday 15 October 2025. The Tribunal was satisfied that it was fair and just to conduct the hearing in this manner. No adjustments were requested by any party. The Appellant represented herself. The First Respondent did not attend. The Second Respondent was represented by Mr Remi Reichhold, Counsel, and Ms Gemma Staniforth, Solicitor.

The appeal relates to the application of the Freedom of Information Act 2000 (“the FOIA”). It concerns information that would be held by the Legal Aid Agency (LAA”). The LAA is an Executive Agency of the Ministry of Justice (“the MoJ”), which is the relevant public authority for the purposes of FOIA. All references in this decision are therefore to the MoJ for the purposes of consistency.

The Appellant made the request which is the subject of this appeal on 10 May 2024 in writing as follows:

“Under the freedom of Information Act 2000, please provide the following information:

Please provide copies of all amendments to the MMR litigation [MPA 94/2] Authority to Do Contract Work [26/9/94] awarded to Alexander Harris Solicitors [7/9/99] between that date and 1/10/03”.

The MoJ responded in writing on 10 June 2024 as follows:

“We can confirm that the MOJ holds all of the information you have requested. However, to comply with the request as it currently stands would exceed the cost limit set out in the FOIA.

Section 12(1) of the FOIA means a public authority is not obliged to comply with a request for information if it estimates the cost of complying would exceed the appropriate limit. The appropriate limit for central government is set at £600. This represents the estimated cost of one person spending 3.5 working days locating, retrieving, and extracting the information.

Where more than one request is received for the same or similar information, section 5(2) of the FOI and Data Protection (Appropriate Limit and Fees) Regulations 2004 allows public authorities to aggregate requests when estimating if the appropriate limit is exceeded”.

The Appellant submitted a request for an internal review on the same date. She stated that she had made previous requests pursuant to the FOIA, namely on 14 September 2023 (responded to on 09 October 2023), 08 November 2023 (responded to on 04 December 2023), on 31 March 2024 (responded to on 29 April 2024), and on 30 April 2024 (responded to on 10 May 2024). She stated that “while I accept that the scope of my request exceeds the costs cap/time limit and I am very happy to adjust my request, I submit that there is no grounds for refusing the request on the basis that it is “same or similar information””. The Appellant submitted that the contracts that were the subject of her previous requests were separate agreement relating to separate solicitors and, save for all being drawn up in the course of the MMR litigation, they were otherwise not the same or similar in any regard. She also stated that the MoJ were not taking a consistent approach in applying the grounds for refusal under FOIA as they had not sought to apply any restriction relating to “60 consecutive working days” prior to the request that was made on 10 May 2024.

The MoJ responded to the request for an internal review on 08 July 2024. The internal review concluded that the MoJ’s response, namely that the requested information was exempt from disclosure under section 12(1) of the FOIA, was compliant with the requirements of that Act.

The MoJ stated that the Appellant had made three requests within twenty-nine working days, namely the requests made on 31 March 2024, 30 April 2024 and 10 May 2024. All of the requests related to the “Authority to do Contract Work” issued to firms of solicitors in relation to the MMR litigation, which were deemed to be requests for the same or similar information.

The reviewer then stated the following:

“I am satisfied that the MOJ was entitled to aggregate, in reliance on section 12(4) of FOIA, the time it would take to answer all three of those FOIA requests and use that total aggregated time when considering whether your requests exceeded the appropriate limit. The MOJ’s response noted that you had made requests for information in the past 60 working days, and as such it has already expended some costs attributable to the appropriate limit under section 12(1) of the FOIA.

The LAA’s records in relation to the MMR litigation are held as paper, and not electronic, records. There are 30 boxes each containing approximately 24 paper files and ring binders. The LAA would be required to sift through each box in order to locate the information to respond to your third request. The LAA undertook such a process in relation to your two previous requests. As set out above, the time taken for one person to locate, retrieve and extract the information requested across all three of those requests has been aggregated and found to be in excess of the “appropriate limit” under section 12(1) of the FOIA”.

The internal review also concluded that the MoJ had provided sufficient information to enable the Appellant to refine her requests pursuant to its duty to provide advice and assistance under section 16(1) of FOIA.

The Appellant lodged a complaint with the Commissioner on 11 July 2024 in relation to the way in which her request had been considered. In particular, she stated that:

The complaint was accepted on 24 July 2024. On 15 October 2024, the Commissioner wrote to the MoJ asking them to reconsider the way in which they had handled the request and to respond to a series of questions. With the Appellant’s consent, the Commissioner also sent the Appellant’s detailed grounds of complaint to the MoJ and invited them to also consider those grounds as part of their investigation response.

The Commissioner’s letter expressly stated that “After looking at our guidance, and in light of the passage of time, you may decide to reverse or amend your position. If you do, please notify the complainant and me within the timeframe specified at the end of this letter”. It also stated that “you may decide to apply a new exemption”.

On 11 November 2024 the MoJ wrote to the Appellant, maintaining that the original refusal to provide the information pursuant to section 12(2) of the FOIA [to note, this was a typographical error and should have referred to section 12(1)] was correct at the time that the decision was made. The letter went on to state “However, given the passage of time since the previous requests with which it was originally aggregated, we are treating your request as a fresh request for this information (as received on 15 October 2024) to resolve your complaint”.

The letter confirmed that the MoJ held the information that had been requested and provided a one-page document titled ‘Amendment Number 2 – Amendment to Contract’.

On 11 November 2024 the Appellant contacted the Commissioner. She stated that she had already received a copy of the one-page document pursuant to an earlier request. She also stated that the one-page document was a record of the transfer of the contract between two named firms of solicitors, rather than copies of all amendments to the contract when it was held by Alexander Harris Solicitors which was what she had actually asked for in her request.

The Appellant further stated that, as the document had previously been disclosed without any suggestion that the search for it has exceeded the costs cap, it was unclear how it could have done so in relation to the request that is the subject of the appeal.

The further complaint by the Appellant was conveyed by the Commissioner to the MoJ on 12 November 2024, and they subsequently responded in writing on 18 November 2024. Dealing with the complaint that the information that had been disclosed was not that which had been sought, the MoJ stated the following:

“Upon receipt of your email the LAA manually re-checked all of the documentation it held relating to the MMR litigation. It was unable to locate any other documents which on its face appeared to be an amendment made to the Authority to Do Contract Work in the dates specified in Miss Stephens’ request.

The LAA disclosed the document on 11 November, as it reasonably considered it to fall within the scope of Miss Stephens’ request because it was specifically titled as being an ‘Amendment to Contract’.

Based on its understanding of Miss Stephens’ request and the parameters set out therein it does not consider that it holds further information within the scope of the request”.

Regarding the previous reliance on section 12 of the FOIA, the MoJ stated that the request had been aggregated with previous requests that had been sent by the Appellant seeking similar information and so, at the time that the final request was made, the cost limit had already been exceeded. The section 12(1) exemption had therefore been applied to the final request but not to the earlier requests.

The MoJ also stated that:

“…As such, the majority of information, including all contract documentation is held in paper format only.

The records are extensive comprising over 100 individual files each containing thousands of pages of documents. These files are not indexed or in any particular order and so it is necessary to search the entirety of the files each time a new request comes in. Given the way in which the files are stored any search has to be manual”.

The MoJ stated that the amount of information that fell within the scope of the request had little bearing on the cost limit, as the MoJ would not have known that the information which fell to be disclosed would be limited to one page or that it had previously been disclosed to the Appellant until the entirety of the files had been reviewed.

The MoJ’s response was sent to the Appellant on 19 November 2024. She responded in writing on the same date stating that earlier disclosures by the MoJ had revealed that the previous two contracts had been subject to multiple amendments, thereby inferring that there would also be amendments relating to the contract when it was held by Alexander Harris Solicitors. She stated that the fact that the MoJ had indicated that they had to manually search over one hundred files in response to her request is indicative of the fact that there is no register of content / index complying with section 2.3.9 of the Code of Practice issued under section 46 of FOIA. She stated that a review of the entirety of the files would not have been necessary if the MoJ had had a system in place that was compliant with the Code to allow easy identification and retrieval.

The Appellant’s further response from 19 November 2024 was conveyed by the Commissioner to the MoJ on the same date. The MoJ responded in writing on 26 November 2024, in which it expressly confirmed the following in relation to the Appellant’s request that it had no information to disclose:

“Based on its understanding of Miss Stephens’ request and the parameters set out therein the LAA does not consider that it holds further information within the scope of the request ie. there are no documents setting out amendments to the Contract/Authority to do Contract Work in the period Alexander Harris held the Contract”.

It was further asserted that the LAA considered that it does meet the requirements set out in the Code of Practice, stating as follows:

“The LAA considers that it does meet the requirements set out in the Code of Practice in that it has a system in place to identify, locate and retrieve all files and information relating specifically to the MMR Multi Party Action litigation funded under legal aid. This enables the precise files to be requested from offsite archive in order to review and locate specific documents. The files are all assigned unique reference numbers and can be located and called for to obtain individual documents within the files. It is not, for example, the case that the specific case files cannot be identified and retrieved without undertaking a full manual search of all historic case files stored in archive.

Each box is further subdivided into sections to enable more targeted searches when specific documents are requested. However, where open ended requests not seeking a specific document/documents are made it is always necessary to review the entirety of the file before the LAA can conclusively determine whether or not it holds the information within the scope of a particular request.

……the case files are very historic and pre-date use of electronic case management systems and digital file structures. The LAA has much more sophisticated tools and processes in place to enable the effective and efficient location and retrieval of information that is stored in digital format”.

The MoJ’s further response was provided to the Appellant on 26 November 2024, who responded to the Commissioner on the same date to query why the MoJ had stated that they “did not consider” that they held any further information, rather than conclusively stating that they did not hold any such information. She reiterated that it was difficult to accept that no amendments/alterations were created during the years that Alexander Harris Solicitors held the contract, given that several such amendments had been created when the contract was held by two previous firms of solicitors.

The Appellant also stated that it was difficult to reconcile the information that had been provided on varying occasions by the MoJ, noting that:

“What was initially explained as a costly laborious task involving many working hours manually sifting through thousands of pages of documents due to the fact they were not indexed or in any particular order is now argued to be a slick system allowing for the location and retrieving of files, with unique identifying reference numbers, and no manual search required.

…….Responses to my FOIA request have, from the outset, been the subject of numerous mixed messages and conflicting statements. Against that backdrop I am not confident that everything possible has been undertaken to identify the requested information”.

The Appellant sent a further email to the Commissioner on 27 November 2024, in which she concluded that “I would respectfully ask that the ICO consider that given the conflicting responses from the LAA/MOJ re the status of their storage and file location and retrieval policies that it is not possible to state with any degree of certainty that further information relevant to my request is not held by them”.

Following the sharing of the Appellant’s further email by the Commissioner with the MoJ, the MoJ sent a further email on 10 December 2024, in which it disputed that it had provided conflicting statements about its ability to search for information. The MoJ confirmed that all archived files have a unique reference number and can therefore be located and called for to obtain individual documents within the files. However, the case files themselves were not indexed or in any particular order, meaning that it would be necessary to manually search through all of the individual files relating to the funding of the MMR litigation in the case of the Appellant’s request.

The MoJ also provided responses to a series of specific questions that had been asked by the Commissioner, stating as follows:

The Decision Notice was issued on 16 December 2024.

The Commissioner’s decision was that, on the balance of probabilities, the MoJ did not hold any further information than that which had been provided to the Appellant.

The Commissioner did not consider the MoJ’s initial reliance on section 12 of the FOIA as the MoJ revised their reliance of that provision during the course of the Commissioner’s investigation.

In the Decision Notice, the Commissioner noted that “it is seldom possible to prove with absolute certainty whether the requested information is held”. He also noted that he was “not expected to prove categorically whether any further information is held; he is only required to make a judgment on whether further information is held on the civil standard of proof of the balance of probabilities”.

Having considered the explanation provided by the MoJ (as outlined above), the Commissioner was satisfied that the MoJ undertook appropriate searches in order to ascertain whether or not it held any further relevant recorded information. On the balance of probabilities, the Commissioner found that no further recorded information within the scope of the request was held by the MoJ.