[2025] UKUT 105 (AAC)

Part I of FOIA is about “Access to information held by public authorities”.

Section 1 of FOIA falls within Part I of FOIA and provides the core duty under FOIA. Section 1 sets out, insofar as relevant, the following:

“General right of access to information held by public authorities.

1(1) Any person making a request for information to a public authority is entitled—

(a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)

if that is the case, to have that information communicated to him.

(2)

Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14….

(4)The information—

(a)

in respect of which the applicant is to be informed under subsection (1)(a), or

(b)

which is to be communicated under subsection (1)(b),

is the information in question held at the time when the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated under subsection (1)(b), being an amendment or deletion that would have been made regardless of the receipt of the request.

(5)

A public authority is to be taken to have complied with subsection (1)(a) in relation to any information if it has communicated the information to the applicant in accordance with subsection (1)(b).”

Section 2 of FOIA is about the “Effect of the exemptions in Part II [of FOIA]” and, per section 1(2) of FOIA, qualifies the effect of section 1(1). Section 2 provides as relevant:

“Effect of the exemptions in Part II

2(1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either—

Section 3(2) of FOIA identifies when information is “held” by a public authority, as follows:

“Public authorities.

3.

(2)For the purposes of this Act, information is held by a public authority if—

(a)it is held by the authority, otherwise than on behalf of another person, or

(b)it is held by another person on behalf of the authority.”

Section 11 also appears within Part I of FOIA. It is worth emphasising at this stage that, unlike sections 2, 12 and 14 of FOIA (and section 9), the general right of access to information conferred by section 1(1) of FOIA is not made subject to section 11. This is no doubt because, as the terms of section 11 make plain, it is about the means by which the information under section 1(1)(b) is to be communicated. Section 11 of FOIA cannot, therefore, alter or affect the right of access conferred by section 1. However, by contrast and per section 1(2) of FOIA, the provisions in sections 12, 14 and the exemptions under section 2 and Part II of FOIA, may cut down or remove that section 1 right.

Ignoring the parts of section which deal with “datasets”, which are not relevant to this appeal, section 11 provides as follows:

“Means by which communication to be made.

11(1) Where, on making his request for information, the applicant expresses a preference for communication by any one or more of the following means, namely—

(a)

the provision to the applicant of a copy of the information in permanent form or in another form acceptable to the applicant,

(b)

the provision to the applicant of a reasonable opportunity to inspect a record containing the information, and

(c)

the provision to the applicant of a digest or summary of the information in permanent form or in another form acceptable to the applicant,

the public authority shall so far as reasonably practicable give effect to that preference…..

(2)

In determining for the purposes of this section whether it is reasonably practicable to communicate information by particular means, the public authority may have regard to all the circumstances, including the cost of doing so.

(3)

Where the public authority determines that it is not reasonably practicable to comply with any preference expressed by the applicant in making his request, the authority shall notify the applicant of the reasons for its determination.

(4)

Subject to subsection (1)…., a public authority may comply with a request by communicating information by any means which are reasonable in the circumstances.”

For completeness, I set out the relevant parts of some of the other provisions (sections 12, 14 and 40 of FOIA) on which the MCA relied in refusing Mr Walawalkar’s request.

“Exemption where cost of compliance exceeds appropriate limit.

12(1) Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

(2)

Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit.

(3)

In subsections (1) and (2) “the appropriate limit” means such amount as may be prescribed, and different amounts may be prescribed in relation to different cases….

Vexatious or repeated requests.

14(1) Section 1(1) does not oblige a public authority to comply with a request for information if the request is vexatious.

(2)

Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request.

Personal information.

40 (1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.

(2)

Any information to which a request for information relates is also exempt information if—

(a)

it constitutes personal data which does] not fall within subsection (1), and

(b)

the first, second or third condition below is satisfied.

(3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act—

(a)

would contravene any of the data protection principles, or

(b)

would do so if the exemptions in section 24(1) of the Data Protection Act 2018 (manual unstructured data held by public authorities) were disregarded.

(3B) The second condition is that the disclosure of the information to a member of the public otherwise than under this Act would contravene Article 21 of the UK GDPR (general processing: right to object to processing).

(4A) The third condition is that—

(a)

on a request under Article 15(1) of the UK GDPR (general processing: right of access by the data subject) for access to personal data, the information would be withheld in reliance on provision made by or under section 15, 16 or 26 of, or Schedule 2, 3 or 4 to, the Data Protection Act 2018, or

(b)

on a request under section 45(1)(b) of that Act (law enforcement processing: right of access by the data subject), the information would be withheld in reliance on subsection (4) of that section.”

Pausing at this point, as they both set out, sections 12 and 14 of FOIA remove the obligation otherwise imposed on a public authority by section 1(1) of FOIA, and so, if applicable, would remove the section 1(1)(b) obligation (here) on MCA to communicate the information of the description specified in the request to Mr Walawalkar. If the obligation to communicate the information requested has been removed by either of sections 12 or 14 being met, the preferred means of communicating the information under section 11(1) does not arise. Putting this point another way, the section 11(1) test only becomes relevant if (and once) the public authority is under the section 1(1) obligation to communicate the requested information to the requestor.

Likewise, if the information requested (or any part of it) is exempt information under section 40 of FOIA, the effect of section 2 of FOIA is that the section 1(1)(b) obligation also does not apply. If the public authority is therefore not under an obligation to communicate the information requested, the preferred means of communicating the information has nothing on which to bite.

Section 16 of FOIA is about the advice and assistance that public authorities are required to give to requestors in relation to their requests. It provides:

“Duty to provide advice and assistance.

16.

(1) It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.

(2)

Any public authority which, in relation to the provision of advice or assistance in any case, conforms with the code of practice under section 45 is to be taken to comply with the duty imposed by subsection (1) in relation to that case”.

Sections 1, 2, 3, 11, 12, 14, and 16 all fall within Part I of FOIA.

Section 50 of FOIA falls within Part IV of FOIA which is concerned with “Enforcement”. Section 50 governs complaints to the ICO about a public authority’s decision on a request for information and provides (insofar as is relevant) as follows:

“Application for decision by Commissioner.

50 (1)Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.

(2)

On receiving an application under this section, the Commissioner shall make a decision unless it appears to him—

(a)

that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45,

(b)

that there has been undue delay in making the application,

(c)

that the application is frivolous or vexatious, or

(d)

that the application has been withdrawn or abandoned.

(3)

Where the Commissioner has received an application under this section, he shall either—

(a)

notify the complainant that he has not made any decision under this section as a result of the application and of his grounds for not doing so, or

(b)

serve notice of his decision (in this Act referred to as a “decision notice”) on the complainant and the public authority.

(4)

Where the Commissioner decides that a public authority—

(a)

has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or

(b)

has failed to comply with any of the requirements of sections 11 and 17,

the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken.”

It is noteworthy that section 50(4) on its face draws a distinction between a failure to communicate information under section 1(1) of FOIA and a failure to comply with a preferred means of communication under section 11 of FOIA. It thus retains the distinction identified above between the right to be communicated the information requested under section 1(1) of FOIA and the means by which that communication is to made in section 11 of FOIA. As will be seen later, this distinction was emphasised by the Court of Appeal in paragraph [51] of its decision in Independent Parliamentary Standards Authority v Information Commissioner and Leapman [2015] EWCA Civ 388; [2015] 1 WLR 2879.

Sections 57 and 58 deal with appeals to the FTT against the ICO’s Decision Notice under section 50. Sections 57 and 58 provide, relevantly, as follows:

“Appeal against notices served under Part IV.

57 (1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice….

Determination of appeals.

58 (1) If on an appeal under section 57 the Tribunal considers—

(a)

that the notice against which the appeal is brought is not in accordance with the law, or

(b)

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2)

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.”

The last piece of the statutory architecture to which I need refer is section 84 of FOIA. Materially, this provides as follows:

“Interpretation.

84.

In this Act, unless the context otherwise requires—

“information”….means information recorded in any form.”