The Wages of Sin is: the Ability to Rely on Section 12

What happens when your FOIA request to a public authority is met with the response that it would breach the cost limits set under section 12 to respond to the request because the authority’s record keeping systems are in a particular (i.e. poor) state? In a word: tough.In Metropolitan Police v Information Commissioner & Mackenzie [2014] UKUT 479 (AAC), Judge Wikeley concluded, at [42], that:

The moral of this case is perhaps this. The question of whether a request falls foul of the cost limit in section 12 is likely to be a function of two factors. The first is the breadth of the request itself, a matter over which the requestor has a considerable degree of control. By definition a carefully focussed FOIA request is less likely to be caught by the cost limit. The second factor concerns the record-keeping practices of the public authority, a matter over which the individual requestor obviously has no control. It may be more difficult to avoid the impact of the section 12 cap when making a request to a relatively decentralised public authority. However, the fact is that FOIA is about the citizen’s right to information, subject to certain safeguards, checks and balances. It is not a statute that prescribes any particular organisational structure or record-keeping practice in public authorities.

Wise words. They followed from his acceptance, at [33], of the repeated approach of the FTT that what section 12 and the regulations made under it requires is a reasonable and realistic estimate of the costs of complying with the request. Not what the costs ought to be, but what they are estimated to be in the world in which the parties actually live.

Is the position different if the record keeping failures of the public authority are not just indicative of poor practice, but are said to be (or even clearly are) contrary to a legal obligation on the public authority? No, held Judge Markus QC in Cruelty Free International v Information Commissioner [2017] UKUT 318 (AAC). In that case, it was argued by the requestor that Bristol University had various record keeping obligations imposed on it by the Animals (Scientific Procedures) Act 1986 in relation to the use of animals in scientific testing. It was said by the University that it would exceed the section 12 costs limits to answer a request for the numbers of animals involved in licensed research and the purposes of that research, because there was no central register and enquiries would have to be made of the individual licence-holders.

As a matter of principle, Judge Markus held that there was nothing in the language of section 12, or the regulations, which indicated that the estimation of cost involved anything other than calculating how long it would take to respond and attributing the cost of that time. If Parliament had intended to provide some exception or different approach for breaches of statutory record keeping obligations it could, and would, have said so. Nor was this surprising, thought the Judge. The consistent approach of the FTT and in Mackenzie has been to require a credible and (if necessary) evidenced estimate of the cost, in the light of the regulations stipulating what tasks may be taken account of in calculating that estimate. What the authorities and the legislation do not suggest is that the public authority calculate how much it ought to cost it to comply, if matters had been arranged differently. At [26], Judge Markus held that “In the context of section 12, there is no relevant distinction to be made between the quality of record-keeping and unlawful record-keeping. Indeed, there is considerable overlap between the two.

The Upper Tribunal was also conscious in its reasoning of the considerable difficulties which might arise in establishing the counter-factual required if the Appellant’s approach were correct, including evaluating the exercises of judgement of the authority as to how to comply with its obligations.

Thus for reasons of principle and statutory language, the requestor must take the authority as they find them. There are of course other ways to address apparent failures of public authorities to comply with legal obligations placed upon them by statute; FOIA is unlikely to be a useful back-door route of doing so.

Rupert Paines appeared for the Commissioner.

Christopher Knight