[2025] UKUT 105 (AAC)

Having cleared the above points out of the way, I turn to address the main ground of appeal. In my judgement, in agreement with the ICO, when read properly in context the test in section 11(1) of FOIA of giving effect to a requestor’s preference for communication of the information “so far as reasonably practicable” is an “all or nothing” test.

This conclusion is dispositive of this appeal and all the grounds of appeal. I say this because the appellant’s appeal before the FTT turned on the section 11 test being a sliding scale one, such that some transcripts of the audio calls could be disclosed to him. In addition, the reasons challenge to the FTT’s decision in paragraph eight of the grant of permission to appeal was subsidiary to this question of statutory interpretation and was only about what the FTT considered the correct legal test was. If, as in my judgement is the case, section 11(1) of FOIA contains an ‘all or nothing’ test, I can identify no material error of law in the FTT’s dismissal of Mr Walawalkar’s appeal, notwithstanding the lack of clarity in the FTT’s reasoning. And the second ground of appeal only arises if the correct legal test the FTT had to apply under section 11 was a sliding scale one.

The issue of the meaning of “so far as reasonably practicable” in section 11(1) of FOIA is an issue of statutory construction. This requires the Upper Tribunal to construe the words of section 11(1) in their statutory context: R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255 at paras; [29]-31]. The parties before me, with different emphases and to different ends, referred me to the ICO’s guidance on “Means of communicating information (section 11)”. That, however, is only the ICO’s, and thus one party’s, view about the meaning and scope of section 11. As such, I am not sure it has even a secondaryrole in deciding the intended scope of a legal provision: see para. [30] of R(O). I have therefore concentrated on the statutory wording within its context in FOIA.

I accept that the phrase “so far as reasonably practicable” may in some contexts cover a sliding scale test, though clearer language could have been used if that was what was intended. For example, section 11(1) does not say “provide the applicant with as much of the requested information in accordance with their preference so far as reasonably practicable”. Mr Walawalkar’s reading of the phrase “so far as reasonably practicable” taken in isolation is, therefore, a tenable one. The key consideration, however, is to construe the relevant phrase within the context of FOIA as a whole. It is only when that statutory context is understood that that the otherwise abstract concept of FOIA providing a constitutional right to information and being liberally construed may have concrete meaning. In any event, section 11 is in my view one stage removed from the (constitutional) right to information found in section 1 of FOIA. Section 11 is not about the substance of the right or even the right to be communicated with the requested information (see IPSA at [51]-[52]), but simply the means by which the information is to be communicated. And, I would add, the “apparent philosophy” of FOIA vouched for in paragraph 39 of Innes was limited to making it easier to use the information to which the requestor was entitled, which has no real application to this case.

The touchstone for determining the meaning of the phrase “so far as reasonably practicable” within its statutory context is, in my judgement, to identify its object. In FOIA that object is the request for information in respect of which the requestor has expressed a preference as to the means of its communication. Read in terms of section 11(1)(a), (b) or (c) of FOIA and section 1 of FOIA, the object of the request is the information which has been requested. It is, per section 1(1)(a) and (b) of FOIA, the information of the description specified in the request which has to be communicated, and, per section 1(4) of FOIA, “the information in question held at the time he request is received”. In Mr Walawalkar’s case the information requested was “all calls between people at sea in the English Channel and HM Coastguard between 00:01am on 15 November 2021 and 23:59pm on 22 November 2021”. It was that information which by section 1(1)(b) of FOIA the MCA was obliged to communicate to Mr Walawalkar (assuming for present purposes no other arguments arose in respect of it under FOIA), and not just a part or subset of that information.

The ICO referred in argument to “the information” being a unitary concept throughout FOIA. I think this is a helpful perspective. The point may be tested by considering the application of section 12 of FOIA and its costs cap. Assuming the information would otherwise be disclosable under section 1 of FOIA, section 12 of FOIA only makes sense, in terms of calibrating the cost of complying with the request for information, if the section 12 estimate is based on the cost of providing all the information requested. Were it otherwise and section 12 involved a sliding scale of compliance, estimating the cost of complying on the basis of as much of the requested information up to the “appropriate limit”, section 12 would have no useful application as it would always oblige a public authority to comply with the request in respect of as much of the information requested up to the appropriate limit. That is not a tenable reading of section 12. It has no ‘sliding scale’ language within it. Moreover, on the face of it Parliament plainly intended that section 12 would apply so as to allow a public authority to refuse the request if complying with it exceeded the appropriate limit. A sliding scale (that is, as much of the requested information as is within the appropriate limit), is not consonant with that statutory intention. The costs estimate in section 12 is about complying with “the request” and that is a request for (all) the information of the description specified in the request.

Where the amount of the information requested breaches, or is likely to breach, the costs cap in section 12, the advice and assistance duty in section 16 of FOIA might apply to require the public authority to advise the requestor to make a less wide-ranging request. However, the starting point for that advice would be grounded in section 1 of FOIA’s statutory focus on the information of the description specified in the request. That section 1 information is all the information held by the public authority which falls within the request, and the rest of FOIA’s consideration of the request is based premise.

A further example of the information requested being a unitary concept is the absolute exemption in section 2(2)(a) of FOIA. The absolute exemption referred to in section 2(2)(a) applies if or to the extent that the information is subject to an absolute exemption.

The ICO also relied on case law as supporting the above analysis. He argued that paragraphs 52 and 53 of IPSA neither mentioned a sliding scale test nor did they consider the partial meeting of the requestor’s preferred means of communication. As an observation this is true, but I place little weight on this as the Court of Appeal in IPSA was not faced with the argument I am addressing. The ICO also argued that paragraph 40 of Innes and its language of “into which it cannot readily be converted” supported the ‘all or nothing’ approach. Again, I am not sure I can attach any real weight to paragraph 40 of Innes. The question arguably might remain what was the “it” that it was not reasonably practicable to convert into another software format: all the information requested or just part of it. In the context of the Innes case it was all the information requested, but the Court of Appeal was not, at least directly, addressing the argument with which I am concerned.

However, on the statutory language read properly in context, and for the reasons given above, I am satisfied that the phrase “so far as reasonably practicable” in section 11(1) imposes an ‘all or nothing’ test. That meant a test that asked the extent (if at all) that it was reasonably practicable to provide Mr Walawalkar with all of the information he had requested as transcripts. On the evidence, the only answer to that was ‘No’. That is the approach the ICO took in paragraphs 2 and 25-33 of the Decision Notice, and the FTT accordingly made no material error of law in dismissing the appeal against that Decision Notice.