The case is of interest for the Upper Tribunal’s construction of section 11(1) of the Freedom of Information Act 2000 (“FOIA”).

The appeal concerned a request for information that was held in audio form by the second respondent, the Maritime and Coastguard Agency (the “MCA”). The appellant, Mr Walawalkar, on behalf of Liberty Investigates, requested distress calls made to the coastguard over a period of a week from people in the English Channel. Mr Walawalkar requested that the calls be provided in transcribed form if the audio calls could not be disclosed.

Section 11(1) FOIA provides as follows:

(1) Where, on making his request for information, the applicant expresses a preference for communication by any one or more of the following means, namely–

(a) the provision to the applicant of a copy of the information in permanent form or in another form acceptable to the applicant,

(b) the provision to the applicant of a reasonable opportunity to inspect a record containing the information, and

(c) the provision to the applicant of a digest or summary of the information in permanent form or in another form acceptable to the applicant,

the public authority shall so far as reasonably practicable give effect to that preference (emphasis added).

The key question in this appeal was whether the “so far as reasonably practicable” test in section 11(1) FOIA is an “all or nothing” test or a “sliding scale”. The former would require the MCA to comply with Mr Walawalkar’s preference for transcribed calls only if it was reasonably practicable to give effect to his preference in relation to all the information sought (namely to transcribe all the audio calls sought in his request). The latter would require the MCA to comply with his preference only up to the extent that it was reasonably practicable to do so, and therefore in principle could require the MCA to transcribe some, but not all, of the audio calls.

As the Judge observed at [81], the issue of the meaning of “so far as reasonably practicable” in section 11(1) is an issue of statutory interpretation. The Judge placed little weight on case law deployed by the parties, since this case law was not directly concerned with the question of interpretation raised in this appeal ([87]). The Judge took as his starting point the need to construe the words of section 11(1) in their statutory context. For this proposition, the Judge cited the authoritative judgment of Lord Hodge DPSC on statutory interpretation in R (on the application of O) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255 at [29]-[31] (“O”)). The Judge observed that ICO’s guidance on “Means of communicating information (section 11)” was “one party’s view about the meaning and scope of section 11”. He doubted whether it “has even a secondary role in deciding the intended scope of a legal provision” ([81], citing [30] of O).

Taking the words “so far as reasonably practicable” in isolation, the Judge considered Mr Walawalkar’s “sliding scale” construction of those words to be tenable ([82]). However, the “key consideration … [was] to construe the relevant phrase within the context of FOIA as a whole” ([82]).

The Judge considered section 11 to be “one stage removed from the (constitutional) right to information found in section 1 of FOIA” ([82]). Section 11 “is not about the substance of the right or even the right to be communicated with the requested information”, but “simply the means by which the information is to be communicated” ([82]).

For the Judge, the “touchstone for determining the meaning” of “so far as reasonably practicable” was the object of that provision in the statutory context of the FOIA ([83]). The object of the request is the information, not a part or subset of that information, requested. The Judge endorsed the ICO’s argument that “the information” was a unitary concept throughout the FOIA, and noted that this point could be tested by considering the application of section 12 FOIA and its costs cap ([84]):

“Assuming the information would otherwise be disclosable under section 1 of FOIA, section 12 of FOIA only makes sense, in terms of calibrating the cost of complying with the request for information, if the section 12 estimate is based on the cost of providing all the information requested. Were it otherwise and section 12 involved a sliding scale of compliance, estimating a cost of complying on the basis of as much of the requested information up to the “appropriate limit”, section 12 would have no useful application as it would always oblige a public authority to comply with the request in respect of as much of the information requested up to the appropriate limit.”

The Judge further noted that the cost estimate in section 12 is about complying with “the request” and that is “a request for (all) the information of the description specified in the request” ([84]). Whilst the appellant’s interpretation of “so far as reasonably practicable” in section 11(1) was tenable taking that provision on its own ([82]), his “sliding scale” interpretation was not a tenable interpretation of section 12. As the Judge noted at [85], where the amount of information requested breaches, or is likely to breach, the costs cap in section 12, the advice and assistance duty in section 16 might apply to require the public authority to advise the requestor to make a less wide-ranging request.

The Judge found further evidence for the information being requested under section 1(1)(b) being a unitary concept in the absolute exemption in section 2(2)(a) FOIA: “The absolute exemption referred to in section 2(2)(a) applies if or to the extent that the information is subject to an absolute exemption”.

Accordingly, the Upper Tribunal concluded that the words “so far as reasonably practicable” in section 11(1) FOIA provide an “all or nothing standard”. If it is not reasonably practicable to provide a requestor with all the information he or she requested in the requestor’s preferred form, the public authority will not be obliged to provide that information, or any part of that information, in that preferred form.

Of course, section 11(1) FOIA is not an exemption from the right in section 1(1)(b) FOIA (see section 1(2)). The first step in the analysis is to assess whether the requestor has the right to the requested information under the relevant exemptions. Once that question is answered, the question arises under section 11 as to how the information is to be communicated. Following this judgment, the question of whether the requestor’s preferred means is “reasonably practicable” should be answered on an all or nothing basis: it does not matter that it might be reasonably practicable to communicate some or part of the information in the requestor’s preferred means. But, importantly, even if the public authority correctly concludes that it would not be reasonably practicable to communicate the requested information by the requestor’s preferred means, this conclusion will not relieve the public authority of its obligation under section 1(1)(b) FOIA.

The Information Commissioner was represented by Ben Mitchell and the Maritime and Coastguard Agency was represented by Heather Emmerson.

A copy of the judgment can be found here.