[2025] UKUT 105 (AAC)

Appeal No. UA-2024-000250-GIA

Between:

Mr Aaron Walawalkar

Appellant

- v -

The Information Commissioner

First Respondent

and

The Maritime and Coastguard Agency

Second Respondent

Before: Upper Tribunal Judge Wright

Representation:

Appellant: Jack Castle of counsel

First respondent: Ben Mitchell of counsel

Second respondent: Heather Emmerson of counsel

On appeal from:

Tribunal: First-tier Tribunal (General Regulatory Chamber Chamber) (Information Rights)

Tribunal Case No: EA/2023/0096

Tribunal Venue: Remote video hearing

Decision Date: 29 December 2023

SUMMARY OF DECISION

This appeal is about a request for information (distress calls from people at sea) which was held in audio form by the second respondent. The appellant argued that the information could be transcribed and that would amount to his preferred means of having the information communicated to him under section 11(1) of the Freedom of Information Act 2000 (FOIA). Other, and logically prior, grounds for refusing the request had been relied on by the MCA, but at the Information Commissioner and FTT stage the focus was solely on section 11(1) of FOIA (in relation to transcripts of the audio calls). The MCA was required to give effect to the appellant’s preferred means of communication “so far as reasonably practicable” under s.11(1). The appellant argued that this involved a ‘sliding scale’ test of providing transcripts of at least some the information requested up to the point that it was no longer reasonably practicable for the MCA to do so.

The decision rejects this argument. It holds that section 11(1) involves an ‘all or nothing’ test which involves asking if it was reasonably practicable for the MCA to provide all of the information in the preferred means (i.e. transcripts of all the audio calls falling within the request). The ICO had applied an ‘all or nothing’ approach and the FTT, although its reasoning was perhaps less than clear, therefore made no material error of law in dismissing the appellant’s appeal against the ICO’s decision.

The decision also comments on the correct order of adjudication of issues under FOI, and suggests that section 11 should only be considered if and when no exclusion or exemption applies to the information under FOIA. The decision in addition rejects an argument that the preferred means of communication under section 11(1) of FOIA is relevant to whether information is held for the purposes of section 1 of FOIA. The latter is a logically prior and separate issue under FOIA.

Information Rights (93) – Freedom of Information – right of access (93.1)

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.]

DECISION