Moss v. The Information Commissioner: Clarifying FOIA's Cost Limit Exemption and Scope of Requests

Introduction

The case of Moss v. The Information Commissioner ([2018] UKFTT 2017_0056 (GRC)) addresses pivotal issues surrounding the application of the Freedom of Information Act 2000 (FOIA). The appellant, Derek Moss, sought detailed information from the Royal Borough of Kingston upon Thames (RBK Council) regarding its housing stock, specifically requesting data on resident and non-resident leaseholders or freeholders across various council estates. The central disputes hinged on the Council's invocation of Section 12 (s12) of the FOIA, which allows withholding information if the cost of compliance exceeds a prescribed limit, and the interpretation of the "scope" of information requests under the Act.

Summary of the Judgment

The First-tier Tribunal (General Regulatory Chamber) reviewed Derek Moss's appeal against the Information Commissioner's Decision Notice dated 2 March 2017, which upheld the Council's refusal to provide the requested information based on the cost of compliance exceeding the statutory limit under s12 of the FOIA. Moss contended that the Commissioner erred in applying s12, breached his rights under Articles 10 and 6 of the European Convention on Human Rights (ECHR), and failed to provide adequate assistance under s16 of the FOIA.

After thorough consideration, the Tribunal dismissed the appeal, affirming the Commissioner's decision. The Tribunal concluded that the Council did not hold the specific composite information requested and that the s12 exemption was appropriately applied given the nature and scope of the request. Additionally, the Tribunal found no breach of Articles 10 or 6, reinforcing the boundaries of FOIA in balancing public interest against the practical limitations of public authorities.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to substantiate the legal framework and reasoning:

Kennedy v. Charity Commission [2014] UKSC 20: Affirmed that FOIA is not an exhaustive scheme for accessing state-held information and that Article 10 ECHR does not broadly impose a duty on public authorities to disclose information.
McInerney v. IC and Department for Education [2015] UKUT 0047 (AAC): Established that public authorities cannot introduce exemptions like s12 after statutory time limits, emphasizing early identification and application of such exemptions.
Magyar Helsinki Bizottság v. Hungary [2016] (Application 18030/11): Provided a framework for assessing Article 10 rights in the context of information access, introducing criteria to evaluate the necessity and justification for withholding information.
Birkett v. DEFRA [2012] PTSR 1299: Supported the notion that public authorities can raise exemptions at their discretion until a formal response is provided.
Other cases like Randall v. IC and Healthcare Products Regulatory Agency (EA/2006/0004) and Metropolitan Police v. IC and MacKenzie [2014] UKUT 0479 (AAC) were cited to validate reasonable cost assessments and the discretion of authorities in managing information requests.

Legal Reasoning

The Tribunal dissected the application of s12 FOIA, which permits withholding information if the cost of compliance surpasses the prescribed limit (£600 for authorities listed in Part I of Schedule 1). The Council's estimation that complying with Moss's detailed request would require approximately 83 hours of manual review fell well beyond this limit, justifying the invocation of s12.

Moss argued that s12 was applied belatedly, infringing upon his Article 6 rights related to fair hearing. However, the Tribunal upheld the Commissioner's discretion to evaluate cost exemptions at the appropriate procedural stage, referencing McInerney to support the proper timing and management of such exemptions.

On the Article 10 front, Moss contended that access to the requested information was vital for public debate and oversight, invoking the criteria from Magyar Helsinki Bizottság. Nevertheless, the Tribunal aligned with the Commissioner’s interpretation, emphasizing that the information was not "ready and available" without incurring excessive costs, thereby justifying the refusal under s12.

The Tribunal also addressed s16 of FOIA, which mandates public authorities to provide advice and assistance in making information requests. It concluded that given the specificity and complexity of Moss's request, it was unreasonable to expect the Council to offer additional assistance beyond standard procedures.

Impact

This judgment reinforces the boundaries of FOIA, particularly concerning the cost-based exemptions and the scope of allowable information requests. It underscores the judiciary's support for public authorities in exercising discretion over cost limits, especially when faced with highly specific and resource-intensive requests.

Future litigants seeking access to detailed or comprehensive data should be cognizant of the cost implications and the necessity to balance their requests against the practical capabilities of public bodies. Moreover, the decision delineates the limitations of invoking Article 10 ECHR within the FOIA framework, reiterating that FOIA remains a distinct and non-exhaustive mechanism for information access.

Furthermore, the Tribunal's affirmation of the Commissioner's decision highlights the deference courts afford to administrative bodies in managing information disclosures, provided they operate within the statutory parameters and procedural fairness.

Complex Concepts Simplified

Freedom of Information Act 2000 (FOIA): UK law giving the public the right to access information held by public authorities, promoting transparency and accountability.

Section 12 (s12) Exemption: Allows public authorities to withhold information if the cost of providing it exceeds a prescribed limit (£600 for certain authorities).

Article 10 ECHR: Protects the right to freedom of expression, which includes the right to receive and impart information.

Article 6 ECHR: Ensures the right to a fair trial and due process, including fair hearings before impartial tribunals.

Article 10 vs. FOIA: While Article 10 provides a broad right to information, FOIA is a specific statutory mechanism with defined procedures and exemptions.

"Ready and Available": A criterion under Article 10 assessing whether information can be provided without excessive effort or cost, influencing the justification for withholding information.

Conclusion

The Moss v. The Information Commissioner judgment serves as a definitive interpretation of FOIA's cost-related exemptions and the practical limitations of information requests. By upholding the s12 exemption, the Tribunal reaffirms the necessity for public authorities to manage resources effectively while balancing transparency obligations. The decision also clarifies the distinct roles of statutory frameworks like FOIA and broader human rights provisions under the ECHR, providing clear guidance for both public bodies and individuals seeking access to information.

Ultimately, this case emphasizes the importance of formulating information requests that are both reasonable in scope and mindful of the potential costs and administrative burdens they impose on public authorities. It delineates the boundaries within which FOIA operates, ensuring that the pursuit of transparency does not inadvertently undermine the operational efficacy of public institutions.