[2025] UKUT 105 (AAC)

Although not a ground of appeal before me, the resolution of this appeal and the arguments on it has not been assisted by the back-to-front approach to the order of decision making adopted by the ICO in his Decision Notice, an approach which then continued on the appeal to the FTT.

From a purely forensic point of view, one answer to Mr Walawalkar’s section 50 complaint was for the ICO to focus on section 11 of FOIA in relation to the transcripts. The difficult with this approach, however, was that it put in reverse order the decision making steps required by the FOIA statutory scheme, a difficulty which has been exemplified by the arguments on this appeal. It is clear in my judgement that the section 11 consideration of the means by which the requested information was to be communicated to Mr Walawalkar arose only when (and if) the obligation to communicate the requested information under section 1 of FOIA applied. On the arguments before the ICO on Mr Walawalkar’s section 50 complaint, that section 11 stage had not been reached both in relation to the audio calls and transcripts made of those calls.

Even assuming, as appears not to have been contested by the MCA before the FTT, that the MCA also “held” the information requested in the form of the creation of transcripts of the audio calls, a number of stages needed to be gone through before the MCA was obliged under section 1(1)(b) of FOIA to communicate the information to Mr Walawalkar, and thus before section 11 had any application. Here, those stages involved, on the case the MCA made to the ICO, first that the transcripts were exempt under section 40(2) of FOIA, second that sections 12 or 14 of FOIA applied to exclude the MCA from the section 1(1) obligation, and third that sections 31 or 38 of FOIA applied to the transcripts. None of these stages were considered or determined. I struggle to identify a proper basis for not considering any of these exemptions or exclusions as it was only if none of them applied that the MCA ought to have come under the section 1(1)(b) obligation to communicate the information to Mr Walawalkar, and thus for section 11 to come into play.

It is only fair to MCA in this regard to record that it made this very point in its initial response to the ICO’s investigation of Mr Walawalkar’s section 50 complaint, when it said:

“The MCA notes the ICO’s own guidance highlights that “if you are not

providing the information because of an exemption, section 11 is not

relevant.” The MCA consider that section 11 is engaged at the point the

public authority has decided in principle that information must be

disclosed and informs the question of “how” it should be provided. For

the reasons explained above, the MCA consider that the information

contained in the distress calls should not be disclosed as it is exempt

under section 40 and therefore section 11 does not arise.”

The MCA still contend that the transcripts of the audio calls would themselves contain personal data and so would be exempt under section 40(2) of FOIA. Moreover, as I understood the MCA’s and the ICO’s arguments on this point, they were that if the information in the audio calls is exempt under section 40(2) of FOIA (and this part of the ICO’s Decision Notice was not appealed by any party to the FTT), that information remained exempt when put in the form of a transcript. Both respondents before me argued in addition that section 11 could not be used to change this consequence as, per paragraph [53] of IPSA, section 11 has a separate function from section 1 of FOIA and does not qualify the entitlement or duty under section 1(1).

I accept and agree with these submissions as a matter of principle. However, their purchase on the facts of this case would seem to be limited because there has been no adjudication by either the ICO or the FTT on whether if transcripts of the calls were made, those transcripts would be exempt from disclosure under section 40 of FOIA. And contrary to the argument I understood the ICO to make at the oral hearing before me, nothing in paragraphs 6, 28 or 59 of the ICO’s Decision Notice makes a finding, let alone decides, that the transcripts of the audio calls would contain personal data such that the exemption in section 40(2) of FOIA was made out.

The argument made here by both respondents was that even if the FTT had erred in law in its approach to section 11 of FOIA, that error of law was not a material error because the information whether in the form of transcripts or audio records was exempt under section 40(2) of FOIA. For the reasons I have just given, I do not accept this argument.