[2025] UKUT 105 (AAC)

The above issues about the order of decision making under FOIA touch on another area of debate on this appeal. This is the role, if any, section 11 of FOIA has in determining whether information is “held” by a public authority under section 11 of FOIA.

Mr Walawalkar argued, relying on paragraph [35]-[36] of IPSA and paragraph of [43] of Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73; 2010 SLT 9, that a distinction is drawn under section 1 of FOIA between the information which has been recorded and the record in which that information appears, with it being the former to which the requestor is entitled. An immediate difficulty for Mr Walawalkar’s argument, as I see it, is that if the information requested is that which is held in the audio record of the distress calls (i.e., the voices and the words used in those calls), that information has been held to be exempt under section 40(2) of FOIA and Mr Walawalkar has not challenged that aspect of the ICO’s Decision Notice. If this is Mr Walawalkar’s case then the appeal would seem to fail at this point because, notwithstanding the points I have made above about the section 40’s application to the transcripts not having been adjudicated upon, Mr Walawalkar has not challenged that the information is exempt.

As I understood it, Mr Walawalkar’s answer to this was to rely on paragraph [16] of the House of Lord’s decision in CSA as being about section 11 of FOIA and that it had the legal effect of tying section 11 to section 1 of FOIA. On this reading of CSA, it was argued for Mr Walawalkar that (i) the MCA, per section 1 of FOIA, “held” the information he requested as audio files, and (ii) per section 1 and section 11 of FOIA read together, in so far as reasonably practicable it also held that information in the form of transcripts. Whether the information was exempt, say under section 40(2) of FOIA, would depend upon looking at the form in which the information ended up being “held”. Unlike the audio calls, the transcripts of the calls could remove certain personally identifiable information such as the tone of the voices used in the calls and thus make it less likely that the information in the transcripts would be exempt under section 40(2) of FOIA.

I do not accept that sections 1 and 11 of FOIA are tied together in this way. This is for three key reasons. First, for the reasons I have given in paragraph 62 above, the decision in CSA does not have this legal effect. Second, the argument that sections 1 and 11 of FOIA are tied together in way for which Mr Walawalkar contends is contrary to paragraphs [51]-[54] of IPSA. IPSA is binding authority that the function of section 11 is separate from section 1 of FOIA and does not qualify the entitlement or the duty under section 1(1) of FOIA: per para. [53] of IPSA. And even within section 1(1) itself, the duty to communicate information in section 1(1)(b) of FOIA is only in respect of the information which the requestor is entitled to under FOIA: IPSA at [52]. Third, I accept the respondents’ argument that, following IPSA and given the structure of FOIA, section 11 cannot confer a greater entitlement to information than applies under section 1 of FOIA. That would be to allow the section 11 tail, the means by which the section 1(1)(b) information is to be communicated, to wag the dog of whether under section 1(1) the requestor has an entitlement to the information requested.