[2025] UKUT 105 (AAC)

Three main cases were referred to in the arguments before me. I will take them in the date order in which they were decided

The first case is the decision of the House of Lords in Common Services Agency v Scottish Information Commissioner [2008] UKHL 74; [2008] 1 WLR 1550 (CSA). The decision in CSA concerned the interaction between the provisions of the Data Protection Act 1998 and the Freedom of Information (Scotland) Act 2002 (“FOISA”). In particular, it concerned what would be section 40 of FOIA and how the protection against processing of individual’s “personal data” aligns with the right to information found in FOISA (and FOIA). For ease of understanding and relevance, I will use the equivalent FOIA provisions when describing the decision in CSA.

The Common Services Agency (the CSA) was a special health board in Scotland. One of its functions was the collection and dissemination of epidemiological information from other Health Boards. A Member of the Scottish Parliament asked it for details of all incidents of childhood leukaemia for both sexes by year from 1990 to 2003 for certain postal areas broken down by census ward. It was not doubted that there was a genuine public interest in the disclosure of this information. Equally, however, the CSA considered there was a significant risk of indirect identification of living individuals if the data was disclosed due to the low numbers resulting from the combination of the rare diagnosis, the specified age group and the small geographic area comprised in the request. It therefore refused the request under what would be section 40 of FOIA.

Following a complaint to the Scottish Information Commissioner (under what would be section 50 of FOIA), the Scottish Information Commissioner (“SICO”) issued his decision on the complaint. The SICO accepted that a living individual could be identified from the data at census ward level, that that data constituted “personal data”, and it could not be released (under what would be section 40 of FOIA) as to do so would breach the first data protection principle under Schedule 1 to the Data Protection Act 1998. However, the SICO did not consider that this meant that the MSP should not have been provided with any information. The SICO had before him guidance describing a process by which, through a disclosure control method called “barnardisation”, statistical information in small counts could be made less likely to disclose personal information. Based on this, the SICO concluded that the provision of information to the MSP in this barnardised form would have provided the closest fit to meeting the MSP’s request. The SICO further decided that the CSA could have offered this option to the MSP under its “advice and assistance” duty (found in what would be section 16 of FOIA), and accordingly the CSA had not dealt with the MSP’s request in accordance with Part I of FOISA. The SICO ordered the CSA to provide the MSP with the census ward data in a barnardised form.

The SICO’s decision was upheld by the Court of Session on the CSA’s appeal. On a further appeal by the CSA to the House of Lords, Lord Hope identified a series of six questions that needed to be addressed on the appeal. The first question was whether the information which SICO had ordered the CSA to release in barnardised form to the MSP was “held“ by the CSA at the time of the request. The remaining five questions posed by Lord Hope in CSA only followed on if the CSA held the information requested in barnardised form. Those remaining questions concerned, in effect and recasting the decision to FOIA provisions, whether the information in barnardised form would be exempt from disclosure under section 40 of FOIA. The decision in CSA did not therefore turn on, nor was it about, the application of the equivalent provision in FOISA to section 11 of FOIA.

In answering the first question, Lord Hope rejected CSA’s argument that the process of barnardisation would require information to be created and until that was done the barnardised information was not “held” by the CSA. In rejecting this argument, Lord Hope said, at paragraph [15], the following:

“15.

It seems to me that the position that the [CSA] has adopted to the request in this case is an unduly strict response to what FOISA requires. This part of the statutory regime should……be construed in as liberal a manner as possible. The effect of barnardisation would be to apply a form of disguise, or camouflage, to information that was undoubtedly held by the [CSA] at the time of the request. It would amount to the provision of that information in a form that concealed those parts of it that have to be withheld but which would nevertheless, to some degree, convey to the recipient information that was undoubtedly held by the Agency at the time of the request. The process is similar to that of redaction, which involves doing something to information in the form in which it was held so that those parts of it which are not private or confidential can be released. It would not amount to the creation of new information, nor would it involve the carrying out of any research. It would be to do no more than was reasonable in the circumstances, having regard to the need for the form in which the information was disclosed to comply with the data protection principles.”

This analysis accords with the ICO’s analysis in this case that recording the information in form of transcripts would not involve the creation of new information.

However, it is important in my judgement to recognise that what the above passage from CSA is concerned with is whether the information in one form was “held” by the CSA. Under FOIA, this is an issue under section 1(1) of FOIA and not section 11.

The CSA decision goes on to address whether, even if the information was held by the CSA in the barnardised form, it would be exempt from disclosure as personal data (under what would be section 40 of FOIA). CSA’s appeal was allowed by the House of Lords on the basis that the SICO had not made findings showing why the information in barnardised form “was not personal data in the hands of [the CSA]….. or, if it was, that disclosure of the information in this form would not contravene any of the data protection principles”. Again, it needs to be noted that this aspect of the decision in CSA was not about the FOISA equivalent to section 11 of FOIA.

Mr Walawalkar sought to rely on remarks made by Lord Hope in paragraph [16] of the CSA decision as showing that section 11 was in play at the stage of considering whether information is “held” for the purposes of section 1(1) of FOIA. That paragraph [16] reads as follows:

“16.

The latitude which should be given to a request which cannot be met in the form requested is indicated by section 11(2)(b) FOISA which provides for the provision of a digest or summary of the information, and by section 11(4) which provides that information may be given by any means which are reasonable in the circumstances. No hard and fast rules can be laid down as to what it may be reasonable to ask a public authority to do to put the information which it holds into a form which will enable it to be released consistently with the data protection principles. Protection against the excessive cost of compliance is provided by section 12 FOISA. But it has not been suggested that the process of barnardisation which the Commissioner said should be adopted in this case would be excessively costly. In my opinion information in that form would contain information that was "held" by the Agency at the time of the request and, unless it was "personal data" and its disclosure would contravene any of the data protection principles, it would have to be released in response to it.”

(Section 11(4) of FOISA equates to section 11(4) of FOIA and section 11(2)(b) of FOISA to section 11(1)(c) of FOIA.)

I make the following observations at this stage about the remarks of Lord Hope in paragraph [16] of CSA.

The second case is Innes v ICO [2014] EWCA Civ 1086; [2015] 1 WLR 210. The issue in Innes did concern section 11(1) of FOIA. It was not, however, about whether section 11(1)’s “so far as reasonably practicable” wording provides a sliding scale test or an all or nothing test.

The public authority in Innes held the information requested and communicated it to Mr Innes. The key issue was whether by providing the information to Mr Innes in electronic form but not in a particular software format suitable to Mr Innes’s needs, the public authority met section 11(1)(a) of FOIA. In allowing Mr Innes’s appeal the Court of Appeal held: (a) that section 11(1)(a)’s wording ‘provision of a copy of the information in a permanent form or another form acceptable to the applicant” entitled the applicant “to request more than simply “permanent” or non-permanent” (paragraph [36]); and (b) the applicant’s right (so far as reasonably practicable) in section 11(1) to choose to have information provided to him in electronic form extended “to a right to choose the software format in which it is embodied” (para. [37]).

Three passages from paragraphs 31, 39 and 40 of Innes were referred to by the parties and I set these out below.

“[31]….Although the argument before us, as below, appeared to proceed on the assumption that the purpose of section 11 was to give applicants a choice of the "form" in which information is supplied, the only question being what that meant, it does not seem to me as straightforward as that. The subject-matter of section 11 is not the form in which the requested information is supplied but the "means" by which it is communicated…..”

[39]…. Citizens are given the right of access to public information at least in part so that they can make use of such information. A construction of the Act which makes it easier for them to do so effectively is to be preferred.

[40]…..it is hard to see any policy objection to a construction which enables an applicant to specify a preferred software……If an authority is asked to provide information in a software format in which it is not already held (or into which it cannot readily be converted) it would be entitled to seek to rely on the reasonable practicability qualification; I doubt if it was part of the purpose of the Act to oblige authorities to input information into a spreadsheet when it does not already exist in that form (though that was not of course the case here). The authority could likewise invoke the reasonable practicability qualification if the provision of information in the way sought would be inconsistent with the licence governing its use of particular software.”

The third case is the decision of the Court of Appeal in Independent Parliamentary Standards Authority v Information Commissioner and Leapman [2015] EWCA Civ 388; [2015] 1 WLR 2879 (“IPSA”). The information request in this case was for the original invoices submitted by three Members of Parliament for expenses claims they had made. What was supplied to the requestor had certain parts of what was in and on the invoices redacted. The redactions covered, inter alia, logos and letterheads, handwriting and manuscript comments, and the layout and style of the invoices. The ICO decided that all the redactions which I have just identified had also to be disclosed to the requestor as information held by IPSA. IPSA’s challenges to the ICO’s decision were dismissed by the First-tier Tribunal, the Upper Tribunal and the Court of Appeal.

The following passages from IPSA were relied on before me.

“[33] As already noted, the entitlement under section 1(1) relates to recorded information but "information" is not further defined. It is an ordinary English word and there is nothing to suggest that it is being used in an unusual or narrow sense. In Common Services Agency v Scottish Information Commissioner [2008] UKHL, [2008] 1 WLR 1550, a case under the materially identical Freedom of Information (Scotland) Act 2002, Lord Hope said that "[t]here is much force in Lord Marnoch's observation in the Inner House … that, as the whole purpose of the 2002 Act is the release of information, it should be construed in as liberal a manner as possible" (paragraph 4). He went on to state that that proposition must not be applied too widely, observing that "while the entitlement to information is expressed initially in the broadest terms that are imaginable, it is qualified in respects that are equally significant and to which appropriate weight must also be given. The scope and nature of the various exemptions plays a key role within the Act's complex analytical framework". As it seems to me, the very fact that detailed exemptions are provided within the complex analytical framework of FOIA shows that "information" itself does not need to be narrowly construed: on the contrary, there is no reason why effect should not be given in this respect to the purpose of the statute by construing it in as liberal a manner as possible. It is, moreover, common ground that "information" is not limited to words and figures but extends to visual and aural information (photographs, drawings, CCTV or audio footage, etc).

[34] A central position in the argument before us was occupied by the opinion of the court, given by Lord Reed, in Glasgow City Council v Dundee City Council [2009] CSIH 73. This was a decision of the Inner House of the Court of Session on two appeals under the Freedom of Information (Scotland) Act 2002. One of those appeals concerned emails from a firm of solicitors stating that, on behalf of a client, the firm "would like to (and hereby does) make an Information Request that we be provided with a copy of [a specified document or documents]" held by Glasgow City Council. The original requests related to a number of statutory registers, notices and orders, but the matter came down to 28 categories of notice. The Council's response to the requests was to the effect that all the information requested was available for purchase in the form of Property Enquiry Certificates ("PECs") under the Council's publication scheme. The Council was evidently concerned that the request under the 2002 Act was an attempt to circumvent the charging regime it had established by way of PECs. The Commissioner decided, however, that the Council had not dealt with the requests in accordance with Part I of the Act.

[35] In considering the appeal against that decision, Lord Reed stated at paragraph 42 of the opinion that the first question was whether the emails were requests for information within the meaning of the Act. He continued:

"43.

As we have noted, section 1(1) of the Act creates an entitlement to be given information; and section 73 defines 'information', for the purposes of section 1, as meaning 'information recorded in any form'. That terminology, which reflects that of the Freedom of Information Act 2000, was carefully chosen: most earlier freedom of information legislation in other jurisdictions confers a right of access to documents (as in the Commonwealth of Australia Freedom of Information Act 1982) or to records (as in the Canadian Access to Information Act 1982, the Irish Freedom of Information Act 1997 and the United States Freedom of Information Act 1966); and the New Zealand Official Information Act 1982, which requires 'official information' to be made available on request, is not restricted to recorded information. The word 'information' is itself of wide range, as has been emphasised by courts construing the New Zealand and Australian legislation (as, for example, in Commissioner of Police v Ombudsman [1988] 1 NZLR 385, R v Harvey [1991] 1 NZLR 242 and Kwok v Minister for Immigration and Multicultural Affairs [2001] FCA 1444). The definition in section 73 is therefore wide in scope, but it is not unlimited. In the first place, it does not include unrecorded information. Secondly, it is implicit in the definition that a distinction is drawn between the record itself and the information which is recorded in it. That is consistent with section 11(2)(c), which implies that 'information' is capable of being contained in a record. The distinction is also reflected in section 65(1) of the Act, which, as we have explained, makes it an offence to alter a record with the intention of preventing the disclosure of information. What a person can request, in terms of section 1(1), is the information which has been recorded, rather than the record itself. The right conferred by section 1, where it applies, is therefore to be given the information, rather than a particular record (or a copy of the record) that contains it. Put shortly, the Act provides a right of access to information, not documentation."

[36] The correctness of that statement of principle is common ground before us, and it is acknowledged in particular that there is a conceptual distinction between the record and the information contained in it and that the statutory entitlement relates specifically to the latter. The point is made by Mr Hopkins on behalf of the Commissioner, however, that there will be cases (of which the present case is said to be one) where it is necessary in practice to disclose the record itself, whether by providing a copy of it or by providing an opportunity to inspect it, in order to communicate the entirety of the information contained in it. The fact that disclosure of the record may be necessary in order to give effect to the entitlement to the information does not undermine the conceptual distinction between the record and the information and does not confuse the statutory entitlement to recorded information with an entitlement to the record. This point did not arise for consideration in the Glasgow City Council case, since there was not alleged to be any shortfall in that case between the information provided and the information contained in the record. As appears from paragraphs 50-51 of the opinion of the court, in relation to the question whether the information fell within a statutory exemption as being obtainable from PECs under the Council's publication scheme, the Commissioner had proceeded on the basis that the information contained in the PECs was not materially different from the information contained in the copy notices requested, and the court declined to hear argument to the effect that the information contained in the notices was not in fact derivable in its entirety from the PECs and that the Commissioner's decision, properly construed, proceeded on that basis.

Issue (1): was there a failure to communicate recorded information to which Mr Leapman was entitled?

[46] [IPSA] advanced an argument to the effect that the Commissioner's approach, as upheld by the tribunals, would leave section 11(2) and (4) of FOIA with no work to do. Those provisions are concerned with the means by which information is communicated. I will look at them in detail when considering the next issue. It suffices to say here that I do not accept that the Commissioner's approach affects the operation of section 11 or deprives it of practical utility. There may be cases, as here, where the available means of communication are limited by the need to disclose a document itself in order to communicate all the information recorded in it. Even then there may be a choice in practice between providing the applicant with a copy of the document and providing him with an opportunity to inspect the original document. But even if in the particular circumstances there is only one available means of communication, the result is consistent with the scheme of the legislation and cannot be said to undermine the legislative purpose.

Issue (2): were the means of communication adopted by IPSA sufficient to comply with Mr Leapman's request?

[49] The finding that IPSA failed to communicate recorded information to which Mr Leapman was entitled might be thought to be dispositive of the case against it. [IPSA] submitted, however, that IPSA had communicated information by means that satisfied the requirements of section 11 and had thereby fulfilled its duty in respect of Mr Leapman's request even if there was a shortfall between the information communicated and the information to which Mr Leapman was entitled under section 1(1). This brings in an issue that I have touched on already but that needs now to be considered in greater detail.

[50] [IPSA’s] argument appeared to proceed along the following lines:

(1)

The manner in which a section 1(1)(b) entitlement is satisfied is prescribed by section 11: section 1(1)(b) states the right, whilst section 11 states the correlative obligation on the public authority.

(2)

The correct meaning of a request for information is a question of law. On the proper interpretation of his request, Mr Leapman expressed a preference for an opportunity to inspect the original documents. If the First-tier Tribunal had approached the matter correctly, it ought so to have found.

(3)

IPSA was entitled to determine that it was not reasonably practicable to give effect to that preference, having regard to "all the circumstances, including the cost of doing so" (see the tailpiece to section 11(1) and the language of section 11(2)). The First-tier Tribunal erred in interpreting "all the circumstances" in a limited way, as referring only to the circumstances of the particular request for information.

(4)

If it was not reasonably practicable to give effect to Mr Leapman's preference, it was open to IPSA, under the terms of section 11(4), to comply with the request by any means which were reasonable in the circumstances, and the means adopted by IPSA satisfied that provision.

(5)

If, contrary to (2) above, Mr Leapman expressed no preference as to the means of communication, then section 11(4) applied directly, and again the means of communication adopted by IPSA satisfied the provision.

(6)

Accordingly, IPSA satisfied the requirements of section 11, and by so doing it fulfilled its duty in respect of Mr Leapman's request even if the means of communication adopted resulted in a diminution or shortfall in the information communicated, as compared with the information to which Mr Leapman was entitled under section 1(1).

[51] In my judgment, the argument breaks down at the first step and produces an untenable conclusion. I do not accept that section 11 has the role ascribed to it by [IPSA]. The duty correlative to the section 1(1) entitlement is inherent in section 1(1) itself. Just as the person making a request for information has a two-fold entitlement under the subsection, namely (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; so the public authority to which the request is made has a correlative two-fold duty, (a) to inform the person in writing whether it holds information of the description specified in the request, and (b) if that is the case, to communicate that information to him. That the subsection imposes a duty on the public authority is clear from related provisions of the statute. For example, section 1(3) provides that where a public authority reasonably requires further information in order to identify and locate the information requested, and has informed the applicant of that requirement, "the authority is not obliged to comply with subsection (1) unless it is supplied with that further information". By section 1(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)". By section 1(6), "in this Act, the duty of a public authority to comply with subsection (1)(a) is referred to as 'the duty to confirm or deny'". Section 50(4), in the context of a complaint to the Commissioner, provides that where the Commissioner decides that a public authority "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)", 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. The same subsection draws an express distinction between (a) a failure to communicate information where required by section 1(1), and (b) a failure to comply with the requirements of section 11.

[52] Thus, there can in my view be no doubt that section 1(1) imposes a requirement or duty, with which a public authority is obliged to comply, to communicate the information to which the person requesting it is entitled, and that such duty is independent of section 11. The entitlement and the correlative duty are qualified by section 1(2), which provides that section 1(1) has effect subject to the other provisions of section 1 and to the provisions of sections 2, 9, 12 and 14. I have already mentioned some of the other provisions of section 1. Section 2 deals with the effect of the exemptions in Part II of the Act. Section 9 concerns fees. Section 12 provides for an exemption where the cost of compliance exceeds "the appropriate limit" as prescribed by regulations. Section 14 provides for an exemption in respect of vexatious or repeated requests. None of those qualifications brings in section 11.

[53] The function of section 11(1) is separate. First, the provision imposes an additional duty on the public authority where, on making the request for information, the applicant expresses a preference for communication by any one or more of the means specified. The public authority is required, so far as reasonably practicable, to give effect to that preference. Where it is not reasonably practicable to give effect to the preference, or where no preference has been expressed, the public authority may, by section 11(4), comply with the request by communicating information by any means which are reasonable in the circumstances. That provision gives the public authority a discretion as to the means by which the information required by section 1(1) is communicated, but it does not empower the public authority to communicate less information than section 1(1) requires. It does not qualify the entitlement or the duty under section 1(1). If the chosen means of communication results in a shortfall as between the information communicated and the information to which the person is entitled under section 1(1), the public authority is in breach of its duty under section 1(1).

[54] It follows that the Commissioner was correct to state at paragraph 16 of the decision notice, and the First-tier Tribunal was correct to hold at paragraph 25 of its determination, that section 11 cannot operate to limit the information that a public authority is obliged to disclose….”