In Benson v IC and the Governing Body of Buckinghamshire New University (EA/2011/0016), the public authority relied upon s. 12 FOIA (cost of compliance) in refusing the multi-part request. In so doing, it aggregated the requests, i.e. it looked at the cost of complying with all parts of the request cumulatively, rather than on a part-by-part basis. Regulation 5(1) of the 2004 Fees Regulations allows for the aggregation of requests where two or more requests made by or on behalf of the same person within a 60-day period “relate, to any extent, to the same or similar information”. The Commissioner agreed with the public authority. He referred to Fitzsimmons v IC and DCMS (EA/2007/0124), where the Tribunal had emphasised the width of the test for aggregation (“to any extent”; “same or similar”).

The Commissioner also took the view that requests were similar where there was an “overarching theme” or “common thread” running between them in terms of the nature of the information requested.

The Tribunal allowed Mr Benson’s appeal. Much turned, of course, on the specific facts. But those who encounter or apply s. 12 FOIA will wish to note the following more general observations (see paragraph 29).

First, tests such as “overarching theme” or “common thread” were, in the Tribunal’s view, not compelling, because they raised concepts not used in the legislation itself.

Secondly, any consequent uncertainty should be resolved in the requester’s favour (though it is not immediately clear whether this last point was intended to be case-specific or more general).

Robin Hopkins