[2025] UKUT 105 (AAC)

After a contested oral hearing which was attended by counsel for Mr Walawalkar and for the MCA, I gave Mr Walawalkar permission to appeal under one of his grounds of appeal. My grant of permission to appeal reads as follows:

“Ground 1

3.

The first ground of appeal (”Ground1”) is that the First-tier Tribunal (“the FTT”) erred in law in its approach to section 11 of the Freedom of Information Act 2000 (“FOIA) by (wrongly) construing it as providing an “all or nothing” requirement. It is argued that the correct approach in law is that section 11 of FOIA provides a ‘sliding scale’, which requires compliance with the requestor’s preference up to the point that it is no longer reasonably practicable to do so.

4.

The Maritime and Coastguard Agency (“MCA”) argues that the FTT applied a ‘sliding scale’ test under section 11 of FOIA, and was correct to do so, and the FTT in fact found that it was not reasonably practicable for the MCA to provide any (i.e. even one) transcript of the audio calls sought by Mr Walawalkar.

5.

I give permission to appeal to Mr Walawalkar under Ground 1 on the following two bases.

6.

First, if the FTT applied an “all or nothing” approach under section 11 of FOIA then it was arguably wrong to do so.

7.

The MCA relies on paragraph 11 of the FTT’s reasons as showing it did not apply an ‘all or nothing’ test. The difficulty with that submission may be (a) that that paragraph appears under a sub-heading “The Issues for the Tribunal” and before its “Conclusions”; and (b) it may be said that paragraph 11, if it is the FTT’s answer about the legal effect of section 11, is unclear as an answer as it arguably may amount to no more than a summary of the wording of section 11. Moreover, if the “The Issues for the Tribunal” section of the FTT’s reasons does contain (at least part of its) dispositive reasoning, the closing sentence in paragraph 14 of its reasons may arguably point in favour of the FTT having adopted an ‘all or nothing’ test under section 11.

8.

A subsidiary aspect of this first part of Ground 1 may be that the FTT’s reasoning is confused, and thus inadequate, as to what it considered was the correct legal construction of section 11 of FOIA.

9.

Second, if the FTT applied section 11 of FOIA as a sliding scale (as Mr Walawalkar and the MCA say is the correct construction of its wording), it failed to reason out adequately, and provide sufficient and clear findings of fact, for why under that sliding scale it was not reasonably practicable for the MCA to provide any (i.e. even one) transcript of the audio calls Mr Walawalkar had requested. A possible arguable difficulty with the FTT’’s reasoning is that it seemingly accepted (per para. 14 of its reasons) that the Information Commissioner had been correct to conclude that it was not reasonably practicable for the MCA to provide any transcripts. It is arguable that, although this was the result of the Information Commissioner’s Decision Notice, the analysis in that Notice only concerned the reasonable practicability of the MCA providing transcripts of all the calls requested (see paragraphs 13, 25-27 and 29-33 of the Decision Notice), and the Notice arguably did not engage with any sliding scale analysis. It may be further arguable that the approach of the Information Commissioner in the Decision Notice was to tie the section 11 preference to the request for the information and all the information requested under that request: see, again, paragraph 29 of the Notice. Whether the Information Commissioner was to correct to do so, if this was his approach, may fall for consideration under the first aspect of Ground 1.”

I refused Mr Walawalkar permission to appeal on his remaining two grounds of appeal. It is worth setting out my reasons for refusing permission to appeal on those grounds as they explain why, in my judgement, the ‘section 12’ and ‘public interest’ arguments taken before the FTT were of no merit.

“Ground 2

10.

The second ground of appeal is that the FTT erred in law in not taking account of the costs limit in section 12 of FOIA as a relevant guideline in considering when it may no longer be reasonably practicable to meet the requestor’s preference under section 11 of FOIA.

11.

I refuse permission to appeal on Ground 2. I do so because I cannot find any properly arguable basis for section 12 being relevant to section 11 given that section 11 expressly includes, in section 11(2), the cost of meeting the stated preference of the requestor. Once cost has properly been taken into account under section 11 of FOIA, and no criticism is made of the FTT in that regard, I cannot see what section 12 would usefully add to the section 11 test. Moreover, nothing in section 11 or section 12 ties either section to the other, and their statutory effects are different. Section 11 is about the means by which communication of the requested information is to be made under section 1(1)(b) of FOIA. It is thus predicated on the request not being refused or otherwise affected by anything in sections 2, 9, 12 or 14 of FOIA. Section 12 provides an exemption from the section 1(1)(b) obligation if the costs of compliance are too high. Such an exemption was not in issue in this case. Furthermore, on the structure of FOIA consideration of such an exemption arises before consideration of the section 11 means of communication. This is because if the exemption is made out, the obligations under sections 1(1)(b) and 11 simply do not arise.

Ground 3

12.

The third ground of appeal is that as matter of law the public interest can be taken into account when considering the application of section11 and the FTT was wrong to conclude otherwise.

13.

I refuse permission to appeal on Ground 3. The test under section 11 is concerned with whether meeting the requestor’s stated preference is reasonably practicable. A test of practicability in terms of the mode of communication of information has nothing to do with evaluating the public interest in providing the information. Like the section 12 argument under Ground 2, considerations of the public interest arise at a different, and earlier, stage in the consideration of the request. Once the section 11 stage has been reached, considerations of the public interest are no longer relevant under FOIA.”