FOISA section 12 costs are assessed by reference to how information is actually held: no public-interest override and no duty to upgrade systems

FOISA section 12 costs are assessed by reference to how information is actually held: no public-interest override and no duty to upgrade systems

Introduction

This commentary examines the decision of the Second Division of the Inner House of the Court of Session in Alexandria Gallagher v The Scottish Information Commissioner, [2025] CSIH 26 (10 October 2025). The appeal arose from a Freedom of Information (Scotland) Act 2002 (FOISA) request made by Ms Alexandria Gallagher to the Police Investigations and Review Commissioner (PIRC) seeking the number of police officers arrested by PIRC since its inception in 2013. PIRC refused the request on the basis that the estimated cost of compliance would exceed the statutory limit in section 12 FOISA, calculating a projected cost of £108,390 to interrogate 433,588 files because the information was not routinely recorded in a retrievable way.

Ms Gallagher complained to the Scottish Information Commissioner (the Commissioner), who upheld PIRC’s refusal, accepting the cost estimate as reasonable when assessed against PIRC’s current systems and record-holdings. On appeal to the Court of Session under section 56 FOISA, Ms Gallagher advanced a series of grounds including that the Commissioner had failed to take account of the public interest in disclosure; that he erred by assessing costs using PIRC’s outdated systems rather than feasible modern automated solutions; and that the Commissioner’s handling was procedurally unfair and unreasonable. The Inner House refused the appeal.

The core legal issue was tightly framed: in calculating whether the section 12 cost limit is exceeded, must the Commissioner (and the authority) assess costs by reference to the way the authority actually holds information, or can the calculation be anchored to how cheaply the information could be obtained if the authority improved or modernised its systems? The Court answered unequivocally that the statute focuses on the authority’s present holdings and retrieval methods. The Court also clarified that there is no public-interest override to section 12, and it confirmed the limited supervisory role of the court on an “error of law” appeal under section 56 FOISA.

Summary of the Judgment

  • The Commissioner did not err in law by accepting PIRC’s cost estimate. Under section 12 FOISA and regulation 3(1) of the Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004, the relevant costs are those reasonably estimated to be incurred in locating, retrieving and providing the information as it is actually held by the authority.
  • There is no public-interest test to disapply section 12. Public interest balancing arises only when an exemption in Part 2 of FOISA is engaged (section 2(1)), not where refusal is based on the cost limit.
  • The Court endorsed the English Upper Tribunal’s approach in Kirkham v Information Commissioner [2018] UKUT 126 (AAC): the “cost of compliance” is related to how the authority holds and would retrieve the information, not an objective inquiry into what would be reasonable to spend or to expect the authority to invest in different systems.
  • The Commissioner does not “police” an authority’s data management or record-keeping. The question is whether the authority complied with FOISA in refusing a request on cost grounds, not whether its systems are optimal.
  • While the Commissioner himself found a breach of section 15 FOISA (advice and assistance) by PIRC, his limited remedial order directing PIRC only to signpost other authorities was not an error of law. The court deferred to the Commissioner’s specialist judgment on what was appropriate in the circumstances.
  • Ms Gallagher’s further allegations of bias, procedural unfairness, irrationality, and unreasonableness were rejected.
  • The appeal was refused.

Statutory Framework (FOISA and the 2004 Fees Regulations)

  • Section 1 FOISA confers a general right of access to recorded information held by Scottish public authorities.
  • Section 12(1) FOISA permits an authority to refuse a request if it estimates that the cost of complying would exceed £600. The notional staff rate applied to such estimates is £15 per hour (as noted by the Court), reflecting the charging assumptions under the fees regime.
  • Regulation 3(1) of the Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 defines “projected costs” as the total costs, whether direct or indirect, which the authority reasonably estimates it is likely to incur in locating, retrieving and providing the requested information.
  • Section 2(1) FOISA sets out the public-interest test, but only in relation to qualified exemptions under Part 2. It has no application to refusals under section 12.
  • Section 15 FOISA imposes a duty to provide advice and assistance to requesters, so far as it is reasonable to do so.
  • Section 56 FOISA limits appeals to the Court of Session to points of law. The court does not re-make the Commissioner’s decision on the merits.

Analysis

Precedents and Authorities Cited

  • Welsh v Scottish Information Commissioner [2015] CSIH 47; 2015 SLT 397 at [17]: The Court reiterated that, on a section 56 appeal, it cannot review the correctness of the Commissioner’s decision on the merits or the adequacy of the authority’s record-keeping; the scope is confined to errors of law.
  • Beggs v Scottish Information Commissioner [2014] CSIH 10 at [15]: Absent perversity or irrationality, disagreements over the weight given to factors do not establish an error of law. This guards against the court reweighing evidence or second-guessing specialist administrative assessments.
  • Murnin v Scottish Legal Complaints Commission [2012] CSIH 34; 2013 SC 97 at [31] and [33] and Levy & McRae Solicitors LLP v Scottish Legal Complaints Commission [2025] CSIH 23; 2025 SLT 1025: These decisions anchor the principle of “institutional respect” for specialist statutory decision-makers. The Court applied that approach to the Commissioner’s evaluative judgments within his statutory competence.
  • Beggs v Scottish Information Commissioner [2023] CSIH 34; 2024 SC 68 at [3], [5]: The public-interest test is only engaged when a qualified exemption under Part 2 is relied upon. It does not operate to override section 12 cost refusals.
  • Kirkham v Information Commissioner [2018] UKUT 126 (AAC): A persuasive English Upper Tribunal decision under analogous UK FOIA provisions. The UT held that the cost limit focuses on how the authority holds information and how it would retrieve it; the question is not whether it would be reasonable to incur expenditure on software or system changes to make retrieval cheaper. The Inner House endorsed and applied that analysis in Scotland.
  • All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner and Ministry of Defence [2011] Info LR 75 at [27]: Often cited for the proposition that cost estimates must be sensible, realistic and supported by cogent evidence. The Court did not dispute this proposition; rather, it concluded that the Commissioner’s acceptance of PIRC’s estimate met that standard when assessed against PIRC’s actual systems.
  • MacDonald, The Law of Freedom of Information (3rd ed), para 4.127: Referenced in argument for the same “sensible, realistic, cogent evidence” standard. The Court effectively held that the Commissioner’s approach satisfied this threshold on the evidence.

Legal Reasoning

The Court’s reasoning proceeds from the statutory text. Section 12(1) FOISA allows refusal if the authority “estimates that the cost of complying would exceed £600.” Regulation 3(1) specifies that “projected costs” are those reasonably estimated to be incurred in locating, retrieving and providing the information. Two consequences follow.

  • First, the statute focuses on the authority’s present reality: how the information is actually held and how, in practice, it would be located and retrieved. The Commissioner’s task is to assess whether the authority’s estimate—grounded in that present reality—is reasonable. It is not to hypothesise or require re-engineering of systems to make compliance cheaper.
  • Second, there is no room in section 12 for a public-interest balancing exercise. That mechanism is reserved to exemptions under Part 2 via section 2(1). Attempts to import a public-interest override into section 12 are “misconceived” (per the Court, citing Beggs 2023).

Against that framework, the Court found no legal error in the Commissioner’s acceptance of PIRC’s cost estimate. The Commissioner had considered PIRC’s current recording and retrieval procedures and concluded that a review of 433,588 files would be required to extract the requested data, yielding a cost far above the £600 limit using the £15/hour notional rate. The authority’s inefficiency, while troubling as a matter of transparency, does not alter the statutory calculus. As the Court observed, paradoxically, “the less efficient a public authority’s systems are, the more likely it is that the cost limit will be exceeded,” and the £600 cap has remained unchanged for over two decades. Nonetheless, the statute as it stands protects authorities from burdensome requests, and the Commissioner was correct to apply it.

The Court expressly aligned Scottish FOISA with the approach in Kirkham. The “focus is on the authority, on how it holds the information, and how it would retrieve it,” and the “cost of compliance will be related to the way that the authority holds the information”—not an abstract inquiry into reasonable outlay or speculative efficiencies. On that view, it would have been an error of law for the Commissioner to require PIRC to upgrade its systems or to treat hypothetical software deployment as relevant to whether the section 12 threshold was exceeded.

As to the challenge based on section 15 FOISA (advice and assistance), the Commissioner had himself identified a breach by PIRC for failing to advise Ms Gallagher how to narrow her request. However, his remedial order was limited to requiring PIRC to direct Ms Gallagher to any other public authority that might hold the information. The Court held that, in context, deciding the appropriate remedial step was a matter for the Commissioner’s specialist judgment, and no error of law was shown.

The Court also rejected generalized allegations of natural justice breaches, bias, irrationality, and unreasonableness. Importantly, it clarified that even if the Court had detected an error, its role would have been to remit the matter to the Commissioner for a fresh decision; the Court does not substitute its own merits decision on whether the £600 threshold was exceeded.

Impact and Significance

This decision consolidates several key principles in Scottish freedom of information practice:

  • No duty to upgrade systems for FOI compliance. Costs under section 12 are assessed by reference to existing holdings and retrieval methods. Authorities are not obligated to modernise or deploy new software to render compliance cheaper for a particular request (or class of requests).
  • No public-interest override of the section 12 cost limit. Public interest balancing remains confined to exemptions in Part 2, not to the operation of the cost cap.
  • Institutional respect for the Commissioner’s evaluative judgments. On a section 56 appeal limited to errors of law, courts will not reweigh evidence or revisit cost reasonableness unless there is a legal misdirection, irrationality, or other reviewable error.
  • Cross-jurisdictional alignment with Kirkham. The Inner House’s endorsement of Kirkham brings Scottish FOISA doctrine into clear alignment with UK FOIA jurisprudence on cost estimates and the focus on how information is held.
  • Practical consequences for requesters. Broad requests aimed at deriving data not routinely recorded in an accessible format will be vulnerable to section 12 refusals. Tactical narrowing, staged requests, and engagement with the authority under section 15 are increasingly essential.
  • Policy signal without judicial remedy. The Court flagged that the £600 threshold has not been adjusted in over 20 years, and that inefficiency can itself function as a barrier to disclosure. However, any recalibration of the cost limit or regulatory guidance is for the legislature or the Commissioner’s guidance function, not for the courts.

Complex Concepts Simplified

  • Section 12 “cost of compliance”: A ceiling that allows an authority to refuse a request if the reasonable estimate of staff time and associated costs to find, retrieve, and provide the information would exceed £600 (calculated at £15 per hour as a notional staff rate). The key focus is on the authority’s actual systems and how the information is currently stored.
  • “Reasonable estimate”: Not an exact audit, but it must be sensible, realistic, and supported by cogent evidence. The authority (and the Commissioner on review) must be able to explain the steps required and how the figures were derived.
  • Public interest test: A balancing exercise applied only when an authority is withholding information under certain exemptions in Part 2 of FOISA. It does not apply to cost refusals under section 12.
  • Institutional respect: Courts defer, within lawful bounds, to the expertise of specialist decision-makers such as the Commissioner. The court interferes only for legal errors (e.g., misdirection, irrationality), not to re-decide the merits.
  • Error of law vs merits appeal: An “error of law” might include misinterpreting a statute, applying the wrong legal test, taking into account irrelevant considerations, failing to take into account relevant ones, or reaching an irrational conclusion. A merits appeal would reweigh facts and substitute judgment—this is not available under section 56 FOISA.
  • Section 15 “advice and assistance”: A duty on authorities to help requesters, as far as reasonable, to refine or redirect requests (for instance, to narrow scope to avoid the cost ceiling or to identify another body likely to hold the information).

Practical Guidance

  • For requesters:
    • Before submitting a broad request for non-routinely recorded data, consider whether the authority is likely to hold it in an accessible format. If not, proactively narrow scope by date range, categories, keywords, or sample periods.
    • Engage early under section 15: ask the authority what scope of request could be met within £600 and whether any summaries or already-compiled statistics exist.
    • If refused under section 12, request a breakdown of the estimate (tasks, volumes, time assumptions) and explore splitting the request into discrete parts over time.
  • For authorities:
    • Ensure cost estimates are documented and evidence-based, showing how the information is held and the steps required to locate, retrieve, and provide it.
    • Fulfil the section 15 duty: when refusing for cost, suggest narrower formulations likely to fall under £600 and signpost alternative sources where appropriate.
    • While there is no legal duty to re-engineer systems for a given request, consider whether reasonable improvements to data capture could reduce future FOI burdens and enhance transparency.
  • For the Commissioner:
    • Continue to scrutinize the evidential foundation of cost estimates while recognizing that the section 12 assessment is anchored to present holdings.
    • Use guidance to encourage better section 15 practice, especially provision of pragmatic narrowing advice on cost refusals.

Comment on Policy and Reform

The Court candidly observed that the £600 cap has remained static for over twenty years and that inefficient systems can more readily trigger refusals, potentially impeding transparency concerning matters of significant public concern (such as police conduct). That observation does not translate into a judicial remedy in an error-of-law appeal. It does, however, sharpen the policy debate: if legislative intent is frustrated by systemic inefficiencies, reform options include updating the cost limit, refining what counts towards the estimate, or promoting standards for recording and routine publication to pre-empt costly bespoke retrieval. These are matters for Parliament and for administrative guidance, not adjudication.

Conclusion

Gallagher v Scottish Information Commissioner settles, at Inner House level, that section 12 FOISA is a practical constraint assessed by reference to how information is actually held and would be retrieved by the authority at the time of the request. There is no public-interest override to that cost cap, and no legal duty on the Commissioner to consider hypothetical system upgrades or to require them. By endorsing the Kirkham approach, the Court harmonizes Scottish and English jurisprudence on cost estimates, while reaffirming the limited role of courts on error-of-law appeals and the deference due to the Commissioner’s specialised evaluative judgments.

The judgment is significant for both requesters and authorities. For requesters, it underscores the importance of targeted, manageable requests and active engagement under section 15 to avoid the cost ceiling. For authorities, it confirms the legal permissibility of cost-based refusals grounded in current systems, coupled with an ongoing duty to provide reasonable advice and assistance. For policymakers, it highlights—without resolving—the tension between static cost thresholds, administrative inefficiency, and the public’s interest in transparency.

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