The Chief Constable of South Yorkshire Police v The Information Commissioner

On 18 January 2010 the Information Tribunal became the First-tier Tribunal (Information Rights). Appeals from the First-tier Tribunal go to the Upper Tribunal. Before then, appeals from the Information Tribunal went to the High Court. However, appeals to the High Court which had been lodged prior to 18 January 2010 are still heard in the High Court because no provision for the transfer to the Upper Tribunal of appeals to the High Court from the Information Tribunal which had already commenced by then was included in the relevant order transferring the functions of the High Court to the Upper Tribunal. This appeal was lodged on 30 December 2009, and it is therefore among the last of the appeals from the Information Tribunal to the High Court. That historical footnote is by way of introduction to this appeal which raises a short but by no means straightforward point of statutory construction. That is whether, when estimating the costs of complying with a request for information, a public authority can take into account the time spent in redacting exempt information from any document in which the information which it proposes to disclose in compliance with that request is contained. All references in this judgment to sections of an Act are references to sections of the Freedom of Information Act 2000 (“the Act”) unless otherwise stated.

The request for information and the response to it. On 9 March 2005, a journalist, Rob Waugh, requested information from South Yorkshire Police about illegal firearms. He also asked for copies of any reports prepared or received by South Yorkshire Police about gun crime. The South Yorkshire Police identified two documents falling within the scope of that request. One of those documents (“document 1”) was disclosed to Mr Waugh, although certain passages were redacted from it because they contained information which was exempt from disclosure under sections 21, 31 and 38 of the Act, which relate to information which is reasonably accessible by other means and information whose disclosure is likely to prejudice law enforcement or health and safety. The South Yorkshire Police was later to claim that “processing” document 1 so that it was “fit for release” had taken 6 hours.

South Yorkshire Police refused to disclose the whole of the other document (“document 2”). Its response was clarified in later correspondence, but what it came down to was that document 2 was 187 pages long. Like document 1, it contained information which was exempt from disclosure under sections 31 and 38. However, it was estimated that it would take 15 hours just to read document 2, and that it would take “at least twice as long” to redact it. Whether that meant that the process of reading document 2 and then redacting it would take at least 30 hours, or whether the process of just redacting it would take at least 30 hours, was never made clear, but either way the work which would be involved in processing document 2 so that it would be in a form which could be disclosed was in excess of 18 hours. As we shall see, this was the maximum number of hours which South Yorkshire Police was required to spend responding to a request for information by regulations made under the Act, namely the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (“the Regulations”).

It was against that background that only pages 1-81 of document 2 were disclosed to Mr Waugh. They had been suitably redacted. South Yorkshire Police said that by then it had spent 28 hours dealing with Mr Waugh’s request, and to spend the time which was needed to provide Mr Waugh with pages 82-187 of document 2 in a suitable form would have resulted in the 18 hours limit being further exceeded. South Yorkshire Police therefore declined to disclose the additional pages of document 2. By then, Mr Waugh had complained to the Information Commissioner (“the Commissioner”) about the way in which South Yorkshire Police had handled his request. At that stage, South Yorkshire Police’s stance that the time spent in redacting a document was to be included in the maximum number of hours required to be spent in responding to a request for information was supported by the Commissioner’s case officer who was handling Mr Waugh’s complaint. However, the Deputy Commissioner took a different view, and that was reflected in the decision notice which the Commissioner subsequently issued on 16 March 2009.

The Commissioner’s decision notice. The Commissioner decided that some of the information which had been redacted from document 1 and from pages 1-81 of document 2 had been properly redacted, but that some of the information had not been. He therefore required South Yorkshire Police to disclose to Mr Waugh the information in those passages in document 1 and in pages 1-81 of document 2 which the Commissioner concluded had been incorrectly withheld. But the relevant finding for present purposes is the Commissioner’s view that the time spent in redacting the documents was not to be included in the maximum number of hours which South Yorkshire Police had been required to spend in responding to Mr Waugh’s request. He therefore required South Yorkshire Police to disclose to Mr Waugh pages 82-187 of document 2, or to provide Mr Waugh with a refusal notice setting out the exemptions on which it relied in withholding that information. He gave South Yorkshire Police 35 days to comply with the requirements of the notice, though the effect of section 50(6) was that South Yorkshire Police did not have to comply with those requirements pending the determination of any appeal.

The appeal to the Information Tribunal. South Yorkshire Police appealed to the Information Tribunal (“the Tribunal”) against both aspects of the decision notice. It did so in the name of the Chief Constable. However, before the hearing of the appeal, the Chief Constable and the Commissioner reached agreement in respect of the redactions in document 1 and in pages 1-81 of document 2. The only remaining issue between the parties related to pages 82-187 of document 2, and whether the time spent in redacting those pages was to be included in the maximum number of hours which South Yorkshire Police had been required to spend in responding to Mr Waugh’s request. On that issue, the Tribunal in a decision promulgated on 14 December 2009 agreed with the Commissioner. It dismissed the Chief Constable’s appeal. The appeal before the High Court is the Chief Constable’s appeal from the dismissal of his appeal to the Tribunal. The appeal lies only on a point of law.

An oral hearing. The hearing of the appeal to the Tribunal was due to last 2½ days. However, once agreement had been reached on the redactions in document 1 and in pages 1-81 of document 2, the Commissioner believed that the remaining issue could be dealt with by the Tribunal without a hearing on the basis of written arguments. The Chief Constable disagreed. He argued that an oral hearing was required, but that if there was not to be one, there should at least be an opportunity for the parties to file written arguments in reply. The Tribunal decided that an oral hearing was unnecessary, but at the same time it gave directions for the service of written arguments in reply. That decision was communicated to the parties by e-mail on 24 September 2009. The parties availed themselves of the opportunity to file written arguments in reply.

The Chief Constable’s appellant’s notice was lodged on 30 December 2009. In the section of the notice in which the Chief Constable had to identify the decision which was the subject of appeal and its date (sections 2 and 5), he identified the dismissal of the appeal to the Tribunal dated 14 December 2009. The appellant’s notice did not purport to be an appeal from the case management decision of 24 September 2009 about whether an oral hearing was necessary, even though in the accompanying grounds of appeal the Chief Constable was purporting to appeal against it. At the beginning of the hearing of the present appeal, Mr David Jones for the Chief Constable acknowledged that what the Chief Constable had been hoping to achieve had in fact been achieved by the oral hearing of the present appeal. However, when it was pointed out to him that (a) the decision of 24 September 2009 was not the subject of any appeal (notwithstanding the grounds of appeal), and (b) in any event, an appeal against the decision of 24 September 2009 would have been out of time by 30 December 2009 when the appellant’s notice was lodged, Mr Jones withdrew that ground of appeal. Nothing more needs to be said about it.

Varying the decision notice. In his written argument to the Tribunal, the Chief Constable requested the Tribunal to vary the decision notice in the event of the appeal being dismissed to allow him 35 days from the date of the dismissal of the appeal to comply with the requirements of the decision notice. The Tribunal did not address that issue. The Chief Constable referred to that failure in his grounds of appeal. The Tribunal did not say why it did not address that issue. Perhaps it thought that it did not have the power to do so: the Tribunal had to dismiss the appeal (and it did not have the express power to do anything else) because the circumstances in which section 58(1) provided for it to substitute a different notice from the one served by the Commissioner had not arisen.

However, it is unnecessary for me to consider whether the Tribunal had the power to vary the decision notice when it was dismissing the appeal, because the Chief Constable applied to the High Court for a stay of the Tribunal’s order pending the determination of this appeal. Kenneth Parker J granted a stay on 27 January 2010. It might be said that there was technically non-compliance with the order for the four weeks between 30 December 2009 and 27 January 2010, but no-one has suggested that it would be appropriate for any enforcement action to be taken. Once again, nothing more needs to be said about the matter, and that leaves the way clear for the court to address the question of principle which the Chief Constable’s appeal raises.

The Act. The core provision of the Act is section 1(1), which provides:

“Any person making a request for information to a public authority is entitled –

(a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)

if that is the case, to have that information communicated to him.”

A public authority’s duty to comply with section 1(1)(a) is referred to in the Act as “the duty to confirm or deny”. Section 1(2) lists the sections of the Act which section 1(1) is to have effect subject to, and these sections include sections 2 and 12.

Section 2 deals with the effect of those provisions in Part II of the Act which exempt certain information from disclosure. It provides, so far as is material:

“(1)

Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either –

(a)

the provision confers absolute exemption, or

(b)

in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information,

section 1(1)(a) does not apply.

(2)

In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that –

(a)

the information is exempt information by virtue of a provision conferring absolute exemption, or

(b)

in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”

It is section 12 which relieves a public authority from complying with the duties imposed upon it by section 1(1) if a particular limit on the cost of complying with those duties is exceeded. Section 12 provides, so far as is material:

“(1)

Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

(2)

Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit.

(3)

In subsections (1) and (2) ‘the appropriate limit’ means such amount as may be prescribed, and different amounts may be prescribed in relation to different cases.

…

(5)

The Secretary of State may by regulations make provision for the purposes of this section as to the costs to be estimated and as to the manner in which they are to be estimated.”

The Regulations. The Regulations were made under sections 12(3) and 12(5). Reg. 3 prescribes the appropriate limit referred to in sections 12(1) and 12(2) as envisaged by section 12(3). For some public authorities, the appropriate limit is £600.00. For others it is £450.00. It has always been common ground that for South Yorkshire Police the appropriate limit is £450.00.

Reg. 4 identifies how a public authority should estimate the costs of complying with a request for information as envisaged by section 12(5). It provides, so far as is material:

“(1)

This regulation has effect in any case in which a public authority proposes to estimate whether the cost of complying with a relevant request would exceed the appropriate limit.

(2)

A relevant request is any request to the extent that it is a request … [for] information to which section 1(1) of the … Act would, apart from the appropriate limit, to any extent apply.

(3)

In a case in which this regulation has effect, a public authority may, for the purpose of its estimate, take account only of the costs it reasonably expects to incur in relation to the request in –

(a)

determining whether it holds the information,

(b)

locating the information, or a document which may contain the information,

(c)

retrieving the information, or a document which may contain the information, and

(d)

extracting the information from a document containing it.

(4)

To the extent to which any of the costs which a public authority takes into account are attributable to the time which persons undertaking any of the activities mentioned in paragraph (3) on behalf of the authority are expected to spend on those activities, those costs are to be estimated at a rate of £25 per person per hour.”

The combined effect of regs. 3 and 4(4) was to limit the maximum number of hours which South Yorkshire Police was required to spend in responding to Mr Waugh’s request for information: expenditure of £450.00 would have been incurred after 18 hours on the basis that the estimated time spent on complying with the request was to be costed at £25.00 an hour. Since redacting the remaining part of document 2 would have taken the time spent on complying with Mr Waugh’s request beyond 18 hours, the critical question which the appeal raises is whether redacting the documents was included in any of the tasks referred to in reg. 4(3).

This question is not altogether new. It had been considered by the Tribunal on two earlier occasions. In Jenkins v The Information Commissioner (EA/2006/0067), it was argued that determining whether information which had been requested was exempt from disclosure was included in “extracting the information” from the relevant document within the meaning of reg. 4(3)(d). The Tribunal took the view that the words “the information” in reg. 4(3)(d) referred to the information which had been requested. Since a document may have information in it which has not been requested as well as information which has been requested, the Tribunal held at [49]-[52] that reg. 4(3)(d) is all about the process by which the information which has been requested is separated from the information which has not been. The time spent in considering whether the information which has been requested is exempt from disclosure is a different exercise altogether and is therefore not included in reg. 4(3)(d). That was the Commissioner’s reasoning in the present case. The Tribunal in Jenkins added for good measure that that work could be charged for as a result of reg. 6 – to which I shall return shortly.

It should be noted that the Tribunal in Jenkins added that the point was “not entirely free from doubt”. Indeed, the outcome of the case did not depend on this part of the Tribunal’s reasoning. But the Tribunal in Department for Business, Enterprise and Regulatory Reform v The Information Commissioner (EA/2007/0072) took the same view at [37], though it did not explain why. It was no doubt as a result of this line of authorities that in (1) The Home Office and (2) The Ministry of Justice v The Information Commissioner [2009] EWHC 1611 (Admin) I was told – and recorded the fact at [19] – that the time involved in considering whether particular information is covered by an exemption had been held by the Tribunal as not coming within the activities set out in reg. 4(3).

The conclusion which the Tribunal reached on these earlier occasions was in line with guidance issued by the Commissioner’s Office. That guidance distinguished between redaction and extraction. Redaction was described as “the process of editing the requested information to remove exempt material”. Extraction was described as “the process by which information included in the request is separated from other information in the same document”. The guidance said that the time spent in the process of extraction could be included in the authority’s estimate of the cost of complying with the request for information, but that the time spent in the process of redaction could not be. That view was based on the distinction drawn by the Tribunal in Jenkins, and reflected the view expressed in the explanatory memorandum to the Regulations prepared by the Department of Constitutional Affairs, which stated in para. 7.3 that when authorities are calculating whether the cost of complying with a request for information would exceed the appropriate limit, “they cannot include the costs associated with considering whether information is exempt under Part II of the Act”. Unsurprisingly, this is also the view of the successor to the Department of Constitutional Affairs, the Ministry of Justice. Its website states that an authority “may not take account of the expected costs of … considering whether the information requested should be withheld in reliance on an exemption under the Act”. However, it rather unexpectedly takes a different view when it comes to the physical act of redacting a document which contains information which is exempt from disclosure. Its website states:

“The Fees Regulations are silent on whether redacting exempt information is an allowable cost when calculating the appropriate limit. The Ministry of Justice’s position is that redacting exempt information is permitted (as it is necessary in order to ‘extract’ the information that must be provided). The Tribunal expressed some doubt about this in the case of Jenkins, but the issue was not central to their decision and the decision was not appealed. The Tribunal agreed that redacting information that is not within the scope of the request is permitted.”

It would, I think, be odd if the time spent in considering whether information which has been requested was exempt from disclosure could not be used in assessing whether the costs of complying with the request would exceed the appropriate limit, whereas the time spent in physically redacting that information from a document which contains information which has been requested but which is not exempt from disclosure could be used. After all, both tasks will, as a matter of practical reality, be performed by the same person at the same time. Having said that, although these views may be interesting, ultimately it is for the Tribunal, and now the High Court on appeal, to decide the true reach of reg. 4(3)(d).

The reasoning of the Tribunal in the present case represented the most comprehensive discussion of the issue up to now. The Tribunal began by noting that the list of tasks referred to in reg. 4(3) had been intended to be exhaustive. Not only was that the effect of the word “only” in reg. 4(3), but also reg. 4(3) was drafted very differently from the equivalent provisions in the Regulations relating to the fees which a public authority can levy under section 9 for providing the information requested and to the charges which a public authority can impose under section 13 when the cost of complying with the request for information exceeds the appropriate limit. The fees which can be levied under section 9 are governed by reg. 6, and the charges which can be imposed under section 13 are governed by reg. 7. Both of these regulations provide – in reg. 6(3) and reg. 7(4) respectively – that “[c]osts which may be taken into account by a public authority for the purpose of the [relevant regulation] include, but are not limited to,the costs of” the various tasks which the regulation then identified (emphasis supplied). As the Tribunal noted at [30]:

“It is reasonable to conclude from the absence of the readily available wordings ‘include, but are not limited to’ used elsewhere in the Fees Regulations, that it was intended not to include any task unless specifically listed in regulation 4(3).”

The Chief Constable had argued that if the time spent on redacting information which was exempt from disclosure was not to be included within reg. 4(3), one might have expected to find a caveat similar to that found in reg. 6(4) which commences: “But a public authority may not take into account …” The Tribunal rejected that argument at [32] in these terms:

“Such wordings may be appropriate where there might otherwise be doubt as to whether the costs of a particular task are or are not to be included. Regulation 6 allows a public authority to charge a fee for informing a requester whether it holds the information requested and for communicating the information to the requester. Regulation 6(3) sets out the costs which can be taken into account for this purpose. Regulation 6(4) says that a public authority cannot take into account any time costs for undertaking the specified activities. This qualification is necessary because without it, such time costs may, quite properly, be taken to be included, particularly because regulation 6(3) is not stated to be exhaustive. This is quite a different situation from regulation 4, both because the list in [regulation] 4(3) is stated to be exhaustive thereby limiting its scope, and also because on the face of it, there is nothing in regulation 4(3) that would imply that the time cost of redactions is included such that it would be necessary to specifically state that it is not included.”

I should add that the effect of reg. 6(4) is that the time spent in redacting information which is exempt from disclosure cannot be charged for under reg. 6, and to that extent I disagree with what the Tribunal in Jenkinssaid about reg. 6.

The critical issue, therefore, was whether the time spent in determining whether information which had been requested was exempt from disclosure was included in any of the tasks referred to in reg. 4(3). Since the information which had been requested was in a document, the question was whether determining whether the information in that document which had been requested was exempt from disclosure was a task which was included in “extracting the information from” the relevant document within the meaning of reg. 4(3)(d). On that issue, the Tribunal agreed with the Commissioner and the Tribunal in Jenkins. Like them, it thought that reg. 4(3)(d) is “concerned with … the process of differentiating the requested information from other information which has not been requested where a document contains both”. It added that “[t]he task of differentiating exempt information from the rest of the information requested is logically the next stage (whether or not for practical purposes the two tasks may sometimes be carried out simultaneously)”. The core point taken on behalf of the Chief Constable on this appeal is that this distinction which the Tribunal drew was wrong.

The route by which the Tribunal construed the words “the information” in reg. 4(3)(d) as meaning “the information which has been requested” rather than “the information which is exempt from disclosure” relied upon the language of reg. 4 and section 1. Reg. 4(1) provides that reg. 4 is to have effect in estimating the cost of complying with a “relevant request”. Reg. 4(2) provides that a “relevant request” is one to which section 1(1) would apply. Since section 1(1) relates to a request “for information”, the information to which reg. 4 relates is the information which has been requested. It had been pointed out to the Tribunal that section 1(1) related to the information to which the person making the request was entitled. To determine to what information the person making the request was entitled, the public authority had to consider whether any of the information which had been requested was exempt from disclosure. Accordingly, it had been argued that although reg. 4(3)(d) included the information which had been requested, it also included information which had been requested but which was exempt from disclosure, because only then would it be known what information the person making the request was entitled to. The Tribunal rejected that argument at [35] on the basis that “the entitlement in section 1(1) is subject to the provisions referred to in section 1(2) which includes the Part II exemptions”. Presumably the Tribunal was referring to section 2, and I shall come later to what the Tribunal may have meant in that sentence.

It had also been pointed out to the Tribunal that both section 12(1) and reg. 4(1) referred to the authority’s estimate of, or its proposal to estimate, the cost of “complying” with the request for information which had been made. It was argued that complying with such a request encompassed the whole process from the receipt of the request to the disclosure of the information. That process necessarily included determining whether any of the information which had been requested was exempt from disclosure. Accordingly, since the legislature required attention to be focused on the cost of complying with the request, and since the process of complying with the request included determining whether any of the information requested was exempt from disclosure, the authority’s estimate of the cost of complying with the request had logically to include the cost of the time spent in determining whether any of the information requested was exempt from disclosure. The Tribunal rejected that argument at [36] in these terms:

“If it was intended to include any and all costs associated with complying with a request, there would have been no need to specify, as regulation 4(3) clearly does, what costs can be included – and by implication, what costs cannot be included.”

Finally, the Tribunal thought that its construction of reg. 4(3) was supported by what it called “the architecture and spirit” of the Act. The former referred to the sequence of the provisions in the Act, though I am far less persuaded than the Tribunal was that the structure of the Act sheds any light on the proper construction of reg. 4(3). The same goes for the point which the Tribunal made about the mechanical nature of the tasks referred to in reg. 4(3) when compared with the “potentially very complex matters of judgment, including, in the case of qualified exemptions, the application of the public interest test” involved in considering whether any of the information requested is exempt from disclosure. I am less convinced than the Tribunal was that the time involved in separating the information which was requested from the information which was not is likely to be less, let alone significantly less, than the time spent in separating the information which is exempt from disclosure from that which is not. To be fair, Ms Holly Stout for the Commissioner did not expressly rely on this part of the Tribunal’s reasoning.

There are two other points which the Tribunal made about the “spirit” of the Act. The Tribunal said at [41]:

“If it was intended that [the time spent in redacting information which was exempt from disclosure] should be included within the scope of the Fees Regulation[s], we find it most unlikely that there would not be both guidance in the legislation as to how such an estimate should be made, as well as safeguards to ensure that it did not significantly undermine the access rights which are at the heart of [the Act]. It is also clear from the time limits in the Fees Regulations (18 hours and 24 hours depending on the public authority), that if it covered the time cost of redactions, in addition to the tasks listed in regulation 4(3), many, if not most, requests involving exemptions, particularly multiple exemptions, could be refused. This too, in our view, could not have been the legislative intent.”

I regard the first of these points as less telling than the Tribunal did. The reality is that it cuts both ways. If the Regulations could have been expected to specify how a public authority might estimate the cost of the time spent in redacting information which is exempt from disclosure, the Regulations could have been expected to specify how a public authority might estimate the cost of the time spent in separating the information which was requested from the information which was not. But the other point which the Tribunal made is persuasive. If the time spent redacting information which is exempt from disclosure is included in the calculation, I suspect that the appropriate limit would be exceeded very much sooner than anyone could have intended.

Mr Jones did not contend that the list of tasks in reg. 4(3) was anything other than exhaustive, and the point made by the Tribunal about the absence in reg. 4 of a caveat of the kind found in reg. 6(4) was not pursued with any vigour. Indeed, the Tribunal’s reasoning on this issue at [32] is compelling. The critical issue relates to the Tribunal’s construction of reg. 4(3)(d), and the Tribunal’s finding that the task to which reg. 4(3)(d) related when the information which had been requested was in a document was in differentiating between the information in it which had been requested and the information in it which had not been. Mr Jones’ core point is that this distinction finds no support in the language of the Act or the Regulations. The language of reg. 4(3)(d) itself – “extracting the information” – is not subject to any limitation or qualification, and is wide enough to encompass the process of redacting from the information which has been requested such of the information which is exempt from disclosure. That is especially so when both section 12(1) and reg. 4(1) focus attention on the cost of “complying” with the request for information, which encompasses the process of determining whether information which would otherwise have to be disclosed pursuant to the request is exempt from disclosure.

Like the Tribunal, I am not impressed by the argument based on the emphasis in the legislation on the cost of complying with the request for information, and summarised at [24] above. The statutory scheme permitted the Secretary of State to provide for how the cost of complying with a request for information is to be estimated. Section 12(5) in effect enabled the Secretary of State to provide that only part of the cost of complying with a request for information can be taken into account by a public authority when estimating whether the appropriate limit will be exceeded. It was pursuant to that power that the Secretary of State limited the public authority’s estimate of the cost of complying with the request to the tasks referred to in reg. 4(3). There is no basis for giving the words “extracting the information” in reg. 4(3)(d) a wider meaning than that which would otherwise be appropriate simply because complying with a request for information may well involve the completion of other tasks as well. That, in effect, was what the Tribunal meant in the passage at [36] of its judgment referred to at [24] above, and I agree with it.

Indeed, the correctness of the Tribunal’s view is reinforced by the fact that there are a number of other tasks – over and above redacting information from that which has been requested on the basis that it is exempt from disclosure – which the Secretary of State did not include in the list of tasks referred to in reg. 4(3). These tasks include

This, then, brings us back to what the Tribunal said reg. 4(3)(d) focuses on – extracting information which had been requested from a document which also contained information which had not been requested. Why should reg. 4(3)(d) also not encompass redacting the information in a document which was exempt from disclosure from the information in the document which was not exempt from disclosure? As Mr Jones said, there was nothing in the language of reg. 4(3)(d) which limits its application to the former. So why should it not include the latter as well?

The answer, I believe, lies in what the word “information” in reg. 4(3)(d) relates to. Does it only relate to the information which has been requested, or can it be said to relate also to information which has been requested and is not exempt from disclosure? In my view, it has to be the former. The words “the information” in reg. 4(3)(d) must relate to the same information as the words “the information” in the rest of reg. 4(3) relate to. The references to “the information” in reg. 4(3) relate to the information referred to in reg. 4(2), i.e. the “information to which section 1(1) of the …. Act would, apart from the appropriate limit, to any extent apply”. That is what the Tribunal found, and I agree with it. It follows that the words “extracting the information from a document containing it” in reg. 4(3)(d) can only refer to extracting the information which has been requested from a document which contains the information which has been requested, thereby distinguishing it from the information in the document which has not been requested.

But that begs the question whether the information referred to in reg. 4(2), although referring to information which has been requested, includes information which has been requested and is not exempt from disclosure. I think not. Since section 1(1), by virtue of section 1(2), has effect subject to the provisions of section 2, and since section 2 disapplies the obligations in sections 1(1)(a) and 1(1)(b) in certain circumstances where exemptions apply, the reference in reg. 4(2) to the “information which section 1(1) of the … Act would … to any extent apply” is a reference to all information which comes within section 1(1), whether or not either of the obligations in section 1(1) are disapplied in respect of that information by section 2, i.e. regardless of whether the information is exempt from disclosure or not. That is what the Tribunal may have meant in the sentence referred to at [23] above, but whatever the Tribunal meant, since reg. 4(2) refers both to information which is exempt from disclosure and information which is not, there is no basis for asserting that the time spent in redacting from the relevant document information which is exempt from disclosure is to be included in reg. 4(3)(d) as well as the time spent in extracting the information in the document which was requested.

This approach is entirely consistent with the fact that although a public authority is obliged to provide the information which has been requested if the information is not exempt from disclosure, it is not obliged to rely on an exemption from disclosure if such an exemption applies to the information which has been requested. Thus, it is not surprising that the cost of separating the information which has been requested from that which has not should be taken into account in calculating whether the cost of complying with the request exceeds the appropriate limit, since disclosing the information is something which the public authority has to do. Similarly, it would not be surprising for the cost of redacting from the information which has been requested information which is exempt from disclosure not to be taken into account when considering whether the cost of complying with the request exceeds the appropriate limit, since relying on such an exemption is not something which the public authority is required to do.

For these reasons, this appeal must be dismissed, though the Chief Constable’s time for complying with the requirements of the decision notice is extended to 35 days from the date of the handing down of this judgment. Mr Jones acknowledged that if the appeal failed, the costs had to follow the event, and I therefore order the Chief Constable to pay the Commissioner’s costs of the appeal, to be the subject of a detailed assessment if not agreed. If the Chief Constable wishes to apply for permission to appeal, he must make that application to the Court of Appeal, since his appeal to the High Court was a second appeal. In the circumstances, it will not be necessary for the parties to attend court when this judgment is handed down.