Gabriel Kanter-Webber v The Information Commissioner & Anor

This is the Tribunal’s final determination of an appeal under section 57 FOIA. The appeal concerns a fees notice issued by the public authority herein (“the Second Respondent)”, for the provision of electronic copies of archival material and the lawfulness of that fee under Regulation 6.

On 11 August 2024 the Appellant requested an electronic copy of the parties’ written submissions to the Judicial Committee of the House of Lords in Hallam v Cheltenham Borough Council [2001] UKHL 15.

The Second Respondent issued a fees notice under section 9 FOIA charging £0.85 per image. It indicated that some material would be withheld under section 40(2).

Following internal review, the position was maintained.

The Appellant complained to the First Respondent, who upheld the fees notice.

The Appellant appealed to this Tribunal and the public authority, the House of Lords, was joined as Second Respondent.:

By earlier decision, (on 24 February 2026) this Tribunal adjourned the appeal and issued case management directions requiring the Second Respondent to provide a Regulation 6-compliant, request-specific cost breakdown supported by evidence.

The Tribunal indicated that only non-staff, non-capital costs could be relied upon and that any failure to provide a compliant calculation might result in adverse inferences and determination on the material available.

In response to those directions, the Second Respondent has not produced a request-specific cost calculation capable of satisfying Regulation 6.

The material provided by the second respondent does not identify, quantify, or evidence recoverable per-image costs and does not exclude impermissible cost elements.

The first respondent, in reply to the case management directions submitted should the Tribunal decide to allow the appeal the appropriate step for the Tribunal to order would be for the Second Respondent to issue a fresh response to the request to the Appellant without issuing a fees notice pursuant to s.9(1) FOIA.

Whether the Commissioner erred in law in upholding the fees notice;

What costs are recoverable under Regulation 6 in the circumstances of this request;

Whether the fee of £0.85 per image is supported by a lawful, request-specific evidential basis following compliance with the Tribunal’s directions.

The requested material is contained in a bound archival volume which cannot safely be reproduced using standard copying equipment.

Specialist imaging equipment is required to produce electronic copies without risk of damage.

The Second Respondent has not provided a request-specific calculation identifying recoverable costs within Regulation 6, either before or after the Tribunal’s directions.

The Second Respondent has not produced supporting documentation demonstrating per-image costs limited to permissible categories.

The material before the Tribunal indicates that the charging model relied upon includes, or historically included, recovery of capital or depreciation costs.

The Tribunal finds that no Regulation 6-compliant evidential basis for the fee has been established.

Section 9 FOIA permits a public authority to issue a fees notice.

Any fee must be determined in accordance with the 2004 Regulations.

Regulation 6(2) limits a fee to the costs reasonably expected to be incurred in communicating the information.

Regulation 6(3) includes costs of reproduction and transmission.

Regulation 6(4) excludes staff time.

Capital and depreciation costs are not recoverable, as they are not costs incurred in relation to the request.

The statutory question is whether the fee represents costs reasonably expected to be incurred in communicating the requested information.

The burden lies on the Second Respondent to identify, quantify and evidence those costs by means of a request-specific calculation.

This Tribunal gave the Second Respondent a clear opportunity to do so by way of the said case management directions.

That opportunity has not been taken. No Regulation 6-compliant calculation has been produced.

The material filed in response to the case management directions does not cure the deficiency. It does not provide a transparent, evidenced, per-image breakdown of permissible costs.

In those circumstances, there is no evidential foundation whatsoever for the fee charged. The Tribunal is not concerned with marginal questions of quantification or methodology but with a complete absence of any lawful cost basis.

The Tribunal is not entitled to speculate, reconstruct, or approximate what a compliant calculation might have shown. Regulation 6 requires demonstrable, request-specific costs. That requirement has not been met despite explicit direction.

The position is therefore clear. The fee has been imposed without a Regulation 6-compliant evidential basis and in reliance, at least in part, on impermissible cost elements.

It is unlawful.

The Commissioner’s decision to uphold that fee cannot stand, as it rests on a cost model incapable of satisfying the statutory requirements.

The defect is both evidential and structural.

The Second Respondent has been afforded a full opportunity to produce a compliant calculation and has failed to do so.

This is not a case in which further material might realistically cure the deficiency as at the relevant time.

Remittal would serve no useful purpose and would be inconsistent with the Tribunal’s duty to determine the appeal.

The appropriate course is to set aside the Decision Notice and substitute the Tribunal’s decision.

The Second Respondent must issue a fresh response to the request without reliance on the impugned fees notice.

Section 40(2) FOIA is not in issue in this appeal and requires no determination.