[2025] UKUT 105 (AAC)

Mr Walawalkar was dissatisfied with ICO’s decision and appealed to the First-tier Tribunal (“the FTT”) under section 57 of FOIA. The FTT’s task under section 58(1) of FOIA was, relevantly, to decide whether the ICO’s Decision Notice was not in accordance with the law. That included the law in Part I of FOIA.

It is settled by case law that the language of “not in accordance with the law” in section 58(1)(a) does not import a secondary judicial review test of legality. Instead, the FTT has a full merits jurisdiction on an appeal: see paragraphs [45]-[46] of Information Commissioner v Malnick and the Advisory Committee on Business Appointments [2018] UKUT 72 (AAC); [2018] AACR 29 and paragraph [21] of Lin v ICO [2023] UKUT 143 (AAC).

The FTT correctly identified that the ICO’s Decision Notice on the transcripts was founded (only) on section 11 of FOIA, and that the ICO had held that it would not be reasonably practicable in the circumstance to expect the MCA to provide the information as transcripts.

Mr Walawalkar’s appeal before the FTT related only to his request to be provided with transcripts of the distress calls. The FTT recorded that there was no dispute between the parties that section 40(2) of FOIA meant the audio recordings were not disclosable under FOIA.

The FTT understood Mr Walawalkar’s arguments in relation to the transcripts to be:

It is fair to say that, even if it was appropriate to consider compliance with section 11 of FOIA first in terms of whether the MCA had acted in accordance with Part I of FOIA, the arguments before the FTT on section 11 were in my view clouded unnecessarily (for reasons I will explain shortly) by considerations about cost under section 12 of FOIA and considerations of the public interest (per paragraph 22(ii) above). Thus the FTT considered the issues before it on section 11 were:

This framing of arguments before the FTT may have contributed to the less than clear reasoning of the FTT on what section 11 of FOIA requires in terms of meeting a requestor’s preferred means of communication.

The internal structure of the FTT’s decision did not assist with this process either. A sub-heading of the FTT’s decision “The Issues for the Tribunal”, which appears before the sub-heading “Conclusions”, contains on its face parts of the FTT’s dispositive reasoning. Thus, the FTT says, at paragraph 11 of its decision:

“On the issue as to whether a public authority has to comply with an expressed preference as to format, in our view, it must clearly do so, but only as “far as reasonably practicable” per s.11(1).”

With respect, this at seems to be no more than a restatement of the critical words in section 11(1) of FOIA, but with the word “as” used instead of the word “so”. It does not say what the section 11(1) test involves, just that whatever the test might be the MCA had to apply it.

The FTT went on to find – again under “The Issues for the Tribunal” - that section 12 of FOIA should not be used as a guide to whether it is reasonably practicable to comply with a requestor’s expressed preference under section 11. It also in the same section of its decision rejected Mr Walawalkar’s argument that the public interest in disclosure was relevant under section 11 of FOIA. The “Issues for the Tribunal” section of the FTT’s decision then ended with this paragraph:

“14…..the Tribunal accept that the Commissioner was correct to conclude that it was not reasonably practicable for the MCA to provide any transcripts. The transcripts do not currently exist. If the Tribunal were to require MCA to disclose some, firstly they would need to be transcribed, incurring the very burden that MCA say prevents them from reasonably practicably doing so. The MCA would also need to address redactions in order to account for the s.40(2) exemption which the parties agree should apply. Secondly, the Tribunal would need to find a mechanism under FOIA to draw a line at a certain number or amount of time. As previously argued, that cannot be the mechanism under s.12. The short answer is that no mechanism is provided under FOIA for the time a public authority must spend complying with a requested format. The only mechanism that does exist is a decision on whether or not it is reasonably practicable to provide any at all.”

It is arguably difficult to read the final sentence in this passage as showing the FTT adopted a ‘sliding scale’ test to section 11.

The FTT’s decision then sets out what it terms its “Conclusions”, as follows:

“15.

In relation to the Grounds of appeal; Ground 1 relates to the Appellant's submission that the MCA should have transcribed as many calls as possible within the costs limit in section 12 of FOIA and that section 11 had been misapplied when the Commissioner considered the issue. But section 11 is distinct from section 12, in law and in subject matter, and should not be conflated. The approach set out in respect of section 12 cannot be imported into section 11. A broader approach is permitted when assessing what is reasonably practicable under section 11 FOIA. MCA have reviewed the exercise of transcribing the call recordings and have concluded that it would be time consuming, burdensome, and difficult (given the subject matter). MCA have concluded the conversion of the information from one form to another is not reasonably practicable. The Court of Appeal considered an analogous scenario in the Innes case and Underhill LJ noted that, "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". While the format differs as to the form that the information existed in and was to be converted to is different in Innes, the conclusion is instructive.

16.

Ground 2 is that there is a significant public interest in the disclosure of the call records given the tragedy of 24 November 2021. Section 11 does not include a public interest assessment, simply an analysis of whether it is "reasonably practicable" for the MCA to provide the transcripts of the calls. The argument made by the Appellant is, in our view wrong in law. While he suggests that an assessment of what is "reasonable" must include an analysis of public interest - with, he submitted, a sliding scale depending on the level of public interest, for which the conclusion was that something of an extreme public interest would require a greater effort in order to be "reasonable" – We find this is not only beyond the spirit and wording of the legislation, but a flawed argument. We find the correct analysis of what is reasonably practicable requires an assessment of a myriad of issues which are independent of and do not relate to what is in the public interest. The Appellant is right to say that the incident of 24 November 2021 is of significant public interest, and we would not want to suggest otherwise in any way. However, that great public interest has no impact on or relevance to the assessment of whether it is reasonably practicable for MCA to transcribe the call recordings in question.

17.

Ground 3 is that MCA previously provided transcripts of calls in response to a FOIA request and so should do so again in this instance. We are persuaded by the arguments submitted on behalf of MCA. MCA is not obliged to provide transcripts of distress calls for all of the reasons set out above. It may voluntarily do so and has done so previously, but this does not undermine MCA's position as to why it is not obliged to do so or, in some way, fetter its ability to raise such an argument. MCA's previous conduct of voluntarily providing transcripts of call recordings does not and could not bind its future conduct and approach or disapply section 11 in some way. The Appellant argues the conduct of other public authorities also release similar material under FOIA and therefore the MCA arguments must be flawed. The Tribunal will judge each case on its merits and we find the conduct of other public authorities in this regard has no bearing on another. This conduct that may occur in some instances does not impact upon the assessment specific to this information in these particular circumstances.

18.

Further or in the alternative, we accept the reasoning in the DN and find no error in law or in the exercise of his discretion by the Commissioner therein.”

It is not clear from these ”Conclusions” what the FTT considered was the correct test under section 11 of FOIA.

Nor is it apparent to me why the FTT considered (in paragraph 18 of the decision) that the ICO’s Decision Notice not being in error of law and not involving a mis-exercise of the ICO’s discretion was an alternative basis for dismissing the appeal under section 58 of FOIA.