AE v The Information Commissioner & Anor

Section 12(1) FOIA provides that a public authority is not obliged to comply with a request for information if it estimates that the cost of complying with the request would exceed the “appropriate limit”.

For central government departments, including the MoJ, the appropriate limit is £600. Under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004, this is calculated at a flat rate of £25 per hour, equating to 24 hours’ work.

Under those Regulations, a public authority may take into account only those costs reasonably expected to be incurred, at the time of the request, in:

Accordingly, the operation of section 12 does not involve any assessment of the value or purpose of the request, nor any balancing exercise by reference to the requester’s personal circumstances.

Section 12 is not subject to a public interest test.

The established case law makes clear that the authority is not required to undertake the work itself in order to rely on section 12. However, it must provide a reasonable estimate of the cost of compliance. Such an estimate must be realistic, sensible, and supported by cogent evidence.

Section 16(1) FOIA imposes a duty on public authorities to provide advice and assistance, so far as it would be reasonable to expect them to do so, to persons who have made requests for information.

The section 45 Code of Practice provides guidance as to the discharge of that duty. While compliance with the Code will generally assist in demonstrating compliance with section 16, the question for the Tribunal remains whether, in the circumstances of the individual case, the authority has provided such advice and assistance as it was reasonable to expect. The Code emphasises that, where section 12 is engaged, public authorities should consider how a request might be refined so as to fall within the cost limit.

The duty imposed by section 16 is a limited one. It requires a public authority to take reasonable steps to assist an applicant, including by identifying and suggesting obvious ways in which a request might be refined. It does not, however, require an authority to devise a compliant request on the applicant’s behalf or to anticipate and propose every conceivable reformulation of the request.

We begin by identifying the scope of this appeal and the matters which fall for determination. As set out above, the Appellant clarified in his Reply that the appeal is confined to the Commissioner’s conclusions under sections 12 and 16 FOIA. He does not pursue, as freestanding grounds of challenge, complaints of delay under section 10 FOIA or any alleged interference with rights under Article 8 ECHR.

The Tribunal’s task, in accordance with sections 57 and 58 FOIA, is therefore to determine whether the Decision Notice was in accordance with the law, and, to the extent that it involved the exercise of discretion, whether that discretion ought to have been exercised differently. In practical terms, this requires the Tribunal to consider whether the Commissioner was entitled, on the material before him, to conclude that the MoJ was entitled to rely upon section 12(1), and that it complied with its duty under section 16.

We further record that the question whether the requested information is held is no longer in dispute. The MoJ confirmed at the internal review stage that relevant information is held, and the Commissioner did not determine the complaint on the basis of section 1(1)(a). The appeal therefore proceeds on the footing that the only issue is whether the duty under section 1(1)(b) is disapplied by section 12. The Appellant’s reliance on material said to be held by other public authorities does not alter that position: the question for the purposes of section 12 is how the information is held within the MoJ’s own systems and the work required to locate and extract it, not whether similar or related information may exist elsewhere.

We also note that the MoJ initially referred to section 12(2) FOIA when responding to the Appellant’s requests. That error was acknowledged and corrected at the internal review stage, and the refusal was thereafter placed on section 12(1). Nothing of substance turns on that correction; the question for the Tribunal is whether the Commissioner was entitled to conclude that the requirements of section 12(1) were met.

Finally, in relation to Ground 1, which concerns the treatment of the Appellant’s successive refinements as new requests, we observe that no complaint under section 10 FOIA falls to be determined in this appeal and that the Appellant does not pursue that issue as a freestanding ground (his reply explicitly states “AE…does not advance any standalone complaint under section 10 FOIA”). The Decision Notice did not determine any alleged breach of the statutory time limit, and the Tribunal’s jurisdiction in an appeal under section 57 is confined to the matters addressed by the Commissioner.

In his Response, the Commissioner maintains that the approach was correct. He submits that, consistently with ICO guidance and practice, where a requester submits a revised or narrowed request, that request falls to be treated as a new request for the purposes of FOIA, with the statutory time limits running from the date of receipt of that new request. The MoJ adopts the same position and contends, in addition, that any complaint as to delay or as to the restarting of the statutory time limits falls outside the Tribunal’s jurisdiction in an appeal under section 57 FOIA.

We nevertheless recognise that the Appellant’s concern is not merely formal. His case, in substance, is that the treatment of each refinement as a new request had the effect of resetting the statutory timeframe, thereby prolonging the overall process and, as he sees it, undermining the statutory scheme by enabling a succession of refusals without a substantive engagement with the request. He submits that this approach is inconsistent with the spirit of FOIA and with the expectation that public authorities engage constructively with attempts to narrow requests.

We do not accept that submission. As a matter of the statutory scheme, a materially revised or refined request may properly be treated as a new request to which the time limits under section 10 apply afresh. That approach is reflected in the guidance relied upon by the Commissioner, and in our judgment it is neither illogical nor unfair. Where the scope of a request has been altered, the public authority is entitled to consider that revised request on its own terms, and it would be artificial to constrain it by reference to the timeframe applicable to an earlier, materially different request.

In any event, and critically for the purposes of this appeal, we do not accept that the treatment of the Appellant’s refinements as new requests has any material bearing on the operation of section 12(1). The application of section 12 falls to be assessed by reference to the request as framed at the relevant time, and the question is whether, at that point, the authority was entitled to form the estimate that the cost of compliance would exceed the appropriate limit. That assessment is not affected by whether, as a separate procedural matter, the request is treated as a continuation of an earlier request or as a new request for the purposes of section 10.

Nor do we accept that the sequence of requests discloses any form of procedural unfairness or abuse in the application of section 12. The correspondence demonstrates that the MoJ consistently indicated that the breadth and duration of the request were the principal drivers of cost, and it sought to invite refinement on that basis. The fact that successive refined requests continued to fall outside the cost limit does not, without more, establish that the process was being manipulated or that the statutory scheme was being undermined.

That said, the sequence of requests, and the manner in which the MoJ responded to them, forms part of the factual background against which both the reasonableness of the cost estimate and the adequacy of the advice and assistance provided under section 16 fall to be evaluated. We have taken that background fully into account for those purposes.

The Appellant’s principal ground of appeal is that the Commissioner erred in accepting that section 12(1) FOIA was engaged. The issue for the Tribunal is whether the Commissioner was entitled, on the material before him, to conclude that the MoJ had made a reasonable estimate that the cost of complying with the request of 12 August 2024 would exceed the appropriate limit.

It is well established that section 12 does not require a public authority to calculate the precise cost of compliance or to undertake the work in question. What is required is an estimate which is reasonable in the sense of being sensible, realistic, and supported by cogent evidence. The Tribunal’s role is not to substitute its own estimate for that of the public authority, but to determine whether it was open to the Commissioner to conclude that the estimate met that standard.

The Decision Notice correctly identifies the applicable legal framework. It records that, in the case of a central government department such as the MoJ, the appropriate limit is £600, calculated at a rate of £25 per hour, equating to 24 hours’ work. It further records the MoJ’s account of how the relevant information is held and the work said to be required to extract it. In substance, the MoJ’s position is that information concerning travel requests made by IPP licence holders is not held in any centrally searchable form but is embedded within individual offender records held on probation case management systems, such that a manual review of those records would be required in order to identify whether a travel request had been made and to ascertain its outcome.

In support of that position, the MoJ estimated that approximately 20 IPP cases per year would fall within the relevant cohort for the Havant Probation Office, which, applied over a six-year period, would produce a cohort of approximately 120 files. It further estimated that each file would require in the region of 60 minutes of review time in order to locate and extract the relevant information, resulting in a total estimate significantly exceeding the statutory limit. The Commissioner accepted that account, noting that the estimate was based on consultation with staff familiar with probation records and that the information sought was not capable of being located by means of any automated search or filtering function. He further observed that, even if the time per record were reduced to 30 minutes, the cost of compliance would still exceed the appropriate limit by a considerable margin.

The Appellant challenges that conclusion on a number of grounds. In summary, he submits that the estimate lacks an adequate evidential foundation. In particular, he contends that the figure of approximately 20 cases per year is unsupported, that the assumption of 60 minutes per file is excessive, that the absence of any sampling exercise undermines the reliability of the estimate, and that the Commissioner’s reasoning—including his reference to a lower time estimate of 30 minutes per record—does not constitute a sufficiently independent or critical evaluation of the MoJ’s position. He further submits that the Commissioner failed to consider the possibility that the requested information could be retrieved more efficiently, including by way of aggregation or automated querying.

In assessing those submissions, it is necessary to keep clearly in view the nature of the Tribunal’s task. The question is not whether the Tribunal would itself have reached the same estimate, nor what the actual cost of compliance would in fact have been. Rather, the question is whether the Commissioner, on the material before him, was entitled to conclude that the MoJ had provided a reasonable estimate within the meaning of section 12(1). That is an evaluative judgment, but one which must be grounded in an assessment of the adequacy and evidential basis of the estimate relied upon.

The Tribunal accepts that the MoJ’s estimate rests upon a number of broad assumptions, in particular as to the size of the relevant cohort and the time required to review each record. It is also correct that the Decision Notice does not set out in detail the evidential derivation of the figure of approximately 20 cases per year, nor does it provide a granular account of the precise method by which that figure was reached. However, it records that the estimate was derived from consultation with experienced probation staff familiar with the relevant systems and caseload. In circumstances where the estimate is based on operational knowledge of how the information is in fact recorded and managed, section 12(1) does not require a level of evidential breakdown equivalent to a formal audit of the systems in question. The question is whether the estimate is sufficiently grounded and intelligible to be regarded as reasonable. In the absence of any positive evidence undermining that account, the Commissioner was entitled to treat that as a legitimate and informed basis for estimation. In those circumstances, we do not accept the Appellant’s submission that the cohort estimate lacks an adequate evidential basis; the Commissioner was entitled to rely on operational knowledge of the caseload in this respect.

Similarly, the estimated time required per file must be considered in light of how the information is said to be held. The Appellant submits that the MoJ has not provided a sufficiently detailed breakdown of the tasks involved in reviewing each record or an explanation of why the information sought could not be extracted more quickly. However, the Commissioner accepted the MoJ’s evidence that the relevant information is not held in a form which permits requests or applications to be filtered or identified without manual review. The evidence establishes that the system does not permit requests or applications to be filtered and that, as a result, a manual search of individual offender records would be required. We do not accept the Appellant’s submission that the requested information could be retrieved by way of a database query; the evidence accepted by the Commissioner establishes that the information is not held in a form which permits such extraction. On that footing, the process of determining whether a travel request has been made, and identifying its outcome, may reasonably require examination of contact logs (and potentially other parts of the record). The fact that the output sought is an aggregate figure does not necessarily reduce the time required to extract the underlying information from records which are not structured for that purpose. In those circumstances, the Commissioner was entitled to conclude that the time estimate, although expressed in broad terms, was not inherently implausible or insufficiently explained so as to fall outside the range of reasonable estimation.

As to the absence of a sampling exercise, the Tribunal accepts that sampling may, in some cases, provide a useful evidential foundation for an estimate, particularly where the principal elements of that estimate – such as the volume of records or the time required to review them – are in dispute. However, there is no requirement in law that a public authority must undertake sampling in every case before relying on section 12 (as the Appellant accepts in his reply). Nor does the absence of sampling, without more, render an estimate unreasonable. The question remains whether the estimate relied upon is sufficiently grounded and intelligible in light of the nature of the information and the work said to be required.

In the present case, the Commissioner did not accept the MoJ’s estimate uncritically. He recorded that it was derived from consultation with staff familiar with the relevant systems and caseload and considered the nature of the task described, namely the manual examination of individual offender records and associated logs. He also addressed expressly the absence of sampling and accepted the MoJ’s explanation that a meaningful sample would itself involve a degree of manual review. The Tribunal does not accept that this reasoning is circular. The Commissioner was not required to treat sampling as an independent evidential exercise divorced from the nature of the task described; rather, he was entitled to assess, by reference to the same operational account of how the information was held and would need to be reviewed, whether undertaking a sample would be likely to provide materially different or more reliable evidence. In circumstances where the estimate was based on operational experience of the systems in question and where the work required was said to consist of repetitive manual review of broadly similar records, the Commissioner was entitled to conclude that further evidential refinement by way of sampling was not necessary to render the estimate reasonable.

The Tribunal does not accept that, in these circumstances, the Commissioner’s conclusion amounts to an uncritical acceptance of assertion or a failure to subject the estimate to adequate scrutiny. While a sampling exercise may, in some cases, assist in testing assumptions of this kind, it was open to the Commissioner to conclude that the explanation provided by the MoJ, taken together with his assessment of the nature and scale of the task, was sufficient to meet the requirement for a reasonable estimate within the meaning of section 12(1).

The Appellant’s criticism of the Commissioner’s reference to a lower estimate of 30 minutes per record does not, in the Tribunal’s view, advance the matter materially further. The purpose of that reasoning was not to construct an alternative estimate, but to illustrate that, even on a more conservative assumption, the total cost would still exceed the statutory limit by a substantial margin. In circumstances where the estimate exceeds the limit by such a margin, the Commissioner was entitled to take that into account in assessing the overall robustness of the estimate.

We reject the Appellant’s submission that the request could have been complied with in part, whether by providing aggregate figures, omitting qualitative detail or otherwise reducing the scope of the information extracted. The Tribunal has also considered the Appellant’s submission that the information should in practice have been capable of retrieval by automated means, or that some form of partial or aggregated compliance ought to have been feasible within the cost limit. The question for the purposes of section 12 is not how the information might ideally be held, but how it is in fact held by the public authority. Nor does FOIA require a public authority to reorganise or redesign its information systems in order to facilitate compliance with a request; the statutory question is how the information is in fact held at the time of the request. Section 12(1) FOIA does not impose an obligation on a public authority to provide partial disclosure by identifying and extracting those elements of a request which might fall within the cost limit; rather the question is whether the cost of complying with the request, properly understood, would exceed the appropriate limit. On the evidence before the Commissioner, any exercise of extracting the requested information from individual records would be likely to require substantially the same process of manual review. In any event, the Commissioner was entitled to conclude that the steps required to identify and extract even a subset of the requested information would, in substance, have been likely to involve substantially the same process of manual examination of individual records, such that the cost of partial compliance would not have fallen materially below that of full compliance. The Commissioner was entitled to accept the MoJ’s evidence that the relevant information was embedded within individual case records and not amenable to automated extraction. On that footing, the process required to derive any aggregate figures would still have involved manual examination of those records. In those circumstances, the Commissioner was entitled to conclude that aggregation would be unlikely materially to reduce the work required to locate and extract the information, given the need to examine individual records in order to identify the relevant information.

Standing back and taking the evidence as a whole, the Tribunal is satisfied that the Commissioner identified the correct legal test, considered the principal components of the MoJ’s estimate and addressed the substance of the key criticisms advanced by the Appellant, including those concerning evidential foundation, the absence of sampling, the adequacy of explanation as to volume and time per record and the possibility of more efficient or partial retrieval. Although the reasoning could have been expressed in greater detail in certain respects, it cannot be said that the Commissioner accepted the estimate uncritically or without regard to its evidential basis.

In those circumstances, the Tribunal concludes that it was open to the Commissioner to find that the MoJ had provided a reasonable estimate of the cost of compliance and that section 12(1) FOIA was engaged. The Appellant’s criticisms do not establish that the Commissioner misdirected himself in law, took into account irrelevant considerations, or failed to take into account matters which he was required to consider.

The Appellant contends that the Commissioner erred in concluding that the MoJ complied with its duty under section 16 FOIA to provide reasonable advice and assistance. The issue for the Tribunal is whether the Commissioner was entitled, on the material before him, to conclude that the MoJ provided such advice and assistance as it was reasonable to expect in the circumstances.

The Appellant submits that the advice given was not meaningful. In particular, he contends that the MoJ merely suggested that the request be reduced to a period of approximately twelve months without explaining why such a refinement would bring the request within the appropriate limit, what work would be required to comply with a reformulated request, or what form of disclosure could realistically be provided. It is said that, in the absence of such explanation, the Appellant was not equipped to formulate a request capable of being answered.

It is well established that where a public authority relies upon section 12 FOIA, it is under a duty, pursuant to section 16, to provide such advice and assistance as it would be reasonable to expect in order to help the requester refine the request so that it may fall within the appropriate limit, or to explain why such refinement is not possible. However, that duty is a limited one. It requires the authority to identify obvious and sensible ways in which the request might be narrowed, but it does not extend to designing a compliant request on behalf of the applicant, to modelling in detail the cost implications of particular reformulations, or to exploring exhaustively every conceivable permutation by which the request might be recast.

The advice provided must nevertheless be sufficient to enable a requester, acting reasonably, to understand the nature of the difficulty faced by the authority and to make an informed decision as to how the request might sensibly be refined. In some cases, that may require an explanation, at least in general terms, of how the information is held and why particular aspects of the request give rise to disproportionate cost.

In the present case, the Commissioner accepted that the principal driver of cost was the need to conduct a manual review of individual offender records over an extended period of time. Against that background, the MoJ identified the breadth of the request, and in particular its temporal scope, as a central feature giving rise to the cost issue. It suggested that the request might be refined by narrowing its scope, including by reducing the timeframe to a period of approximately twelve months.

It is also material that the Appellant did in fact adopt part of the MoJ’s advice by narrowing the request geographically to the Havant Probation Office. The remaining advice, namely the suggestion of a substantially shorter timeframe, was directed to the same underlying concern, namely the total number of files which would require manual review. In substance, it indicated that reducing the temporal scope would reduce the volume of records and thereby the overall cost of compliance.

The Tribunal accepts that the MoJ did not explain, in detail, how a request limited to twelve months would be processed, nor did it provide an explicit calculation demonstrating that such a request would necessarily fall within the cost limit. Nor did it provide a granular breakdown of the work involved in processing a revised request. However, section 16 does not require that level of precision or assurance. The duty is to provide reasonable assistance, not to guarantee that a particular reformulation will succeed. Nor was the MoJ required to demonstrate, by means of a worked calculation, that a request limited to twelve months would necessarily fall within the appropriate limit. It was sufficient to identify a rational basis on which the burden of compliance would be materially reduced.

The question is whether, viewed objectively and in the round, the advice given was sufficient to enable the Appellant to understand the nature of the difficulty and to identify a sensible means of addressing it. In the Tribunal’s judgment, that standard was met. The essential point—that the breadth of the timeframe was a key determinant of cost, because of the need to review individual case files—was conveyed with sufficient clarity. The suggestion of a materially shorter timeframe directly addressed that difficulty and pointed to an obvious and practical avenue of refinement.

The Appellant places weight on the fact that the advice was brief and, in substance, repeated. In the Tribunal’s view, that does not demonstrate non-compliance with section 16. Where a public authority has identified a clear and material means by which the burden of compliance may be reduced, it is entitled to reiterate that advice if it is not adopted. The duty does not require the authority to formulate progressively more elaborate or speculative alternatives in response.

Nor does the Tribunal accept that the advice was rendered inadequate by the absence of a more detailed technical explanation of the MoJ’s systems or of the precise cost consequences of particular refinements. As noted above, section 16 does not impose an obligation to provide a detailed exposition of internal processes or to conduct a predictive analysis of the outcome of every possible reformulation. It is sufficient that the requester is placed in a position to understand, in general terms, why the request exceeds the cost limit and how it might sensibly be adjusted.

Drawing these matters together, the Tribunal is satisfied that the Commissioner identified the correct legal approach to section 16 and was entitled to conclude that the MoJ had taken reasonable steps to assist the Appellant. Although the advice provided was concise and did not include detailed quantification, it was directed to the principal source of the burden and provided a clear indication of how the request might be refined.

In those circumstances, the Tribunal concludes that the Commissioner did not err in law in finding that the MoJ complied with its duty under section 16 FOIA.

For completeness, we address each of the grounds of appeal advanced by the Appellant.

In relation to Ground 1, which alleges procedural unfairness arising from the treatment of refined requests as new requests, we are satisfied that it does not arise as a freestanding issue within the scope of this appeal. In any event, and insofar as it is said to bear upon the application of section 12, we do not accept that the treatment of refined requests affected the lawfulness of the Commissioner’s conclusions.

Ground 2, which challenges the application of section 12, has been addressed in detail above. For the reasons given, we are satisfied that the Commissioner was entitled to conclude that the MoJ’s estimate was reasonable and that section 12(1) was engaged.

Ground 3, concerning the alleged breach of section 16, likewise fails for the reasons set out above. The Commissioner was entitled to find that the MoJ provided such advice and assistance as it was reasonable to expect.

Ground 4, relating to the MoJ’s earlier reference to section 12(2), does not affect the lawfulness of the Decision Notice, the error having been corrected prior to the Commissioner’s determination.

Ground 5, which relies upon Article 8 ECHR, is not pursued as a freestanding ground and does not fall within the scope of this appeal. In any event, it does not provide a basis for concluding that the Decision Notice was not in accordance with the law.

Ground 6, alleging deliberate obstruction or bad faith, is unsupported by the evidence. It is not sufficient to assert that an estimate is incorrect or unconvincing; an allegation of bad faith requires a properly evidenced basis of a different order. The correspondence demonstrates a consistent application of section 12 and attempts to invite refinement of an otherwise broad request. We find no evidential basis for any allegation of bad faith.

It follows that none of the grounds of appeal establishes that the Decision Notice was not in accordance with the law.

The appeal is therefore dismissed.

For completeness, the Tribunal also addresses the Appellant’s alternative request for further evidential directions.

In the alternative, the Appellant invites the Tribunal, if it is not minded to allow the appeal outright, to direct the MoJ to file a witness statement addressing the matters identified in the Appellant’s Reply, including the systems searched, the basis of the estimated volume of records, and the feasibility of extracting aggregate data.

The Tribunal does not consider it appropriate to make such a direction. The Tribunal’s role in an appeal under section 57 FOIA is to determine whether the Decision Notice is in accordance with the law, by reference to the material before the Commissioner and any further evidence properly admitted in these proceedings. It is not the function of the Tribunal to require a respondent to produce evidence addressing matters in the precise form or level of detail preferred by the Appellant, absent some identified deficiency preventing the fair determination of the issues.

In the present case, the MoJ has already provided an explanation of its estimate, including the basis on which the volume of records was assessed and the time required to review them, and that material was considered by the Commissioner in reaching his conclusions. The Tribunal is satisfied that the evidential record is sufficient to enable it to determine whether the Commissioner erred in law in accepting that estimate and in concluding that section 12 and section 16 FOIA were complied with.

The Appellant’s request amounts in substance to a request that the MoJ supplement its evidential case on appeal in response to criticisms advanced in the Reply. In those circumstances, a direction requiring the production of a further witness statement in the terms sought would not be necessary for the fair disposal of the appeal and would risk impermissibly recasting these proceedings as an inquiry into whether a more detailed or differently structured evidential case might have been advanced before the Commissioner. The Tribunal therefore declines to make the direction sought.