[2025] UKUT 105 (AAC)

Mr Walawalkar complained about this refusal to the Information Commissioner (“the ICO”) under section 50 of FOIA.

In a Decision Notice dated 24 January 2023 the ICO gave the following decision.

“1.

The complainant has requested audio recordings of distress calls made from the English Channel and transcripts of those recordings. The above public authority…relied on a number of different exemptions as its reasons for not providing the information.

2.

The Commissioner’s decision is that it would not be reasonably practicable in the circumstances to expect the public authority to provide the information as transcripts and therefore it has complied with its obligations under section 11. The Commissioner considers that the public authority is entitled to rely on section 40(2) of FOIA to withhold the audio recordings. The public authority breached section 17 of FOIA in responding to this request.

3.

The Commissioner does not require further steps.”

The ICO’s decision in paragraph 2 of the Decision Notice treated the transcripts of the distress calls differently to the audio recording of those calls. This difference may have reflected the way in which the ICO understood the MCA to be arguing its case before the ICO.

In terms of the audio recordings, the MCA argued (or so the ICO understood), in the alternative, that (i) the audio recordings were exempt from disclosure under section 40(2) of FOIA, or (ii) it could rely on either section 12 or 14(1) of FOIA, or (iii) if none of sections 40(2), 12 or 14(1) applied, it could rely on sections 31 and 38 of FOIA to withhold the audio recordings.

Turning to the transcripts of those audio calls, the MCA argued before the ICO, again in the alternative, that (i) the transcripts were also exempt under section 40(2) of FOIA, or (ii) that under section 11(1) of FOIA it was not reasonably practicable to provide the transcripts, or (iii) complying with the transcripts request would either exceed the cost limit in section 12 of FOIA or impose a grossly oppressive burden contrary to section 14(1) of FOIA; or (iv) section 31 or 38 of FOIA would apply to the transcripts.

It is only the transcripts of the audio calls with which this appeal is concerned. Paragraph 13 of the ICO’s Decision Notice said this about the transcripts of the audio calls:

“In the case of the transcripts, the Commissioner notes that the public authority’s arguments rely on the burden that would be incurred if it were required to carry out the work of transcribing the audio recordings. Therefore, the Commissioner considers that, before he can decide whether the request is burdensome, he must first decide whether the public authority is obliged to communicate the information in this manner. If it is not obliged to communicate the information in this form, there would be no burden as the request could be dismissed out of hand. Therefore the Commissioner will consider the application of section 11 of FOIA first, before going on to consider sections 12 and 14. If the public authority is obliged to communicate the information in this format and the Commissioner considers that neither section 12 nor 14 applies, he will finally consider whether any of the Part II exemptions apply.”

The ICO considered there was a circularity to the arguments about the transcripts of the audio calls. On the one hand, the MCA’s case was that it need not consider whether it was required to communicate the information it held (the audio recordings) in the form of a transcript as that information was subject to at least one exemption from disclosure. On the other hand, as the ICO characterised it in the Decision Notice, the MCA “need not cite an exemption from disclosure if it could demonstrate that it is not required to comply with this part of the request”. The Decision Notice continued (at paragraph 15):

“The Commissioner could arguably have started anywhere within this circle. However, the issue of whether the public authority is required to communicate information in this manner is a novel one (the Commissioner has issued decision notices where a requester sought an audio recording, but was given a transcript instead – but not the other way around) and would benefit from a regulatory decision.”

In other words, as far as transcripts of the audio records of the distress calls were concerned, the ICO chose to focus only on the terms of section 11 of FOIA.

The ICO accepted in principle that a requestor has the right to ask for an audio recording to be communicated to them in the form of a transcript. Creating such a transcript did not involve creating new information. It is simply the process of taking information held in one form (audio) and converting it into another form (a written document). Some of the information (such as a speaker’s tone of voice) would not be transferred into the transcript, but no new information was being created. Accordingly, in the ICO’s view, section 11 of FOIA would require the public authority to communicate the information in the form of a transcript, “unless it [was] not reasonably practicable”.

Consistently with what the ICO said in paragraph 15 of his Decision Notice, the ICO’s consideration was solely in respect of whether section 11 of FOIA supported the MCA in not providing Mr Walawalkar with the information he had requested in the form of transcripts. The Decision Notice does not, for example, address whether the transcripts were exempt under section 40(2) of FOIA. It does not do so because the Decision Notice concludes that the MCA came to the correct decision under section 11 of FOIA that it was not reasonably practicable to supply the transcripts to Mr Walawalkar.

The ICO’s reasons for coming to this conclusion in the Decision Notice were as follows:

“25.

The public authority noted that, based on previous experience, it took, on average, around 45 minutes to produce an accurate transcript of one call. Given that the request encompasses 55 calls, communicating all the information in this format would require more than 41 hours of staff time.

26.

In addition, the public authority noted that many of the calls are quite distressing to listen to and that transcribing such a large amount of calls would be likely to have an adverse impact on the wellbeing of the staff assigned to such a task.

27.

Having given consideration to the matter, the Commissioner is of the view that, in the circumstances of this case it was not reasonably practicable for the public authority to give effect to the complainant’s preference to have the information communicated to him in this form.

28…….A transcript does not contain [the tone of the caller’s voice] and the conversation itself is only likely to contain a relatively small amount of identifiable information – which can be easily redacted. The Commissioner considers that it will generally be more reasonable to give effect to a requester’s preference if doing so results in the disclosure of information which might otherwise have been exempt.

29.

The complainant’s request covers a large number of distress calls. Had it been for just one or two, then it would have been more reasonable to expect the public authority to give effect to this preference, but the public authority is entitled to take account of the amount of time it would need to spend in order to give effect to the complainant’s preference.

30…..given the potential for such calls to involve sections that are either in a foreign language, heavily accented or barely audible due to the environment or the quality of the phone line, the process needs to be carried out by individuals with a certain amount of skill and experience – meaning that the burden would be concentrated on a relatively small number of the public authority’s staff…….

32…… the Commissioner… accept[s] that such resources will be finite and that, in dealing with the request, the public authority will be having to divert them away from its frontline services. Therefore the Commissioner recognises that this does have a small amplifying effect on the burden as a whole – which, as he has outlined above, is already considerable.

33.

For these reasons, the Commissioner considers that, in the circumstances, it was not reasonably practicable for the public authority to communicate the requested information in the format sought by the complainant.”

It is noteworthy that Mr Walawalkar in his appeal to the FTT characterised this part of the Decision Notice as adopting an “all or nothing” approach to section 11(1) of FOIA. This can be seen from paragraph 4 of Mr Walawalkar’s skeleton argument before the FTT which stated:

“The IC’s DN, issued on 24 January 2023, concluded it is “not reasonably practicable” for the MCA to transcribe this entire batch of 55 distress calls, due to the volume of work involved, and therefore no further action was required.”

It is inherent in Mr Walawalkar’s appeal to the FTT that if the “all or nothing” approach is the correct test under section 11(1) of FOIA, the ICO’s Decision Notice was correct and was in accordance with the law. This can be seen from paragraph 44 of the same skeleton argument where Mr Walawalkar invited the FTT to conclude it was reasonably practicable for “the MCA to disclose at least 32 of the 55 distress call transcripts”. (It appears from later correspondence that the number of distress calls may have been 112. This does not affect the analysis that for Mr Walawalkar’s case to succeed, section 11(1) of FOIA has to involve a “sliding scale” test.

The rest of the ICO’s Decision Notice is concerned with disclosure of the audio recording of the distress calls. The ICO decided that the audio calls were the personal data of both the caller and the call handler and were exempt from disclosure under section 40(2) of FOIA. This part of the ICO’s decision was not appealed by Mr Walawalkar.

Translating both aspects of the ICO’s Decision Notice into the language of section 50 of FOIA, it held that Mr Walawalkar’s request for information (including his request to be proved with transcripts of the distress calls) had been dealt with in accordance with Part I of FOIA.