Reuben Kirkham v Information Commissioner (Section 12 of FOIA) (Information rights - Freedom of Information - exceptions)

Factual and Procedural Background

The Appellant made a Freedom of Information Act 2000 (FOIA) request on 12 June 2014 to Company A (Cambridge University) seeking detailed information related to proposals submitted to a funding council in response to a Doctoral Training Call. The request specified sections concerning Equality and Diversity, drafts, email correspondence, and related communications. Company A refused the request relying on section 12 of FOIA, which permits refusal if the cost of compliance exceeds the appropriate limit, though it offered to provide an answer to the first question.

The Appellant complained to the Information Commissioner, who investigated and issued a decision notice on 17 February 2015 confirming Company A’s compliance with FOIA. The Appellant appealed to the First-tier Tribunal, which after a preliminary decision and further inquiries, dismissed the appeal on 19 January 2016. Permission to appeal to the Upper Tribunal was initially refused but later granted in part by Upper Tribunal Judge Turnbull on 28 April 2017 regarding Grounds 1 to 6 (Theme 1) and a related appeal on costs. Following Judge Turnbull’s retirement, the case was transferred to the presiding Upper Tribunal Judge who held an oral hearing on 26 February 2018.

Company A did not participate as a party in either tribunal. The Upper Tribunal’s decision addresses the legal correctness of the First-tier Tribunal’s dismissal of the appeal against the Information Commissioner’s decision notice.

Legal Issues Presented

1. Whether the public authority (Company A) made a lawful and reasonable estimate of the cost of compliance under section 12 of FOIA.
2. The proper interpretation and application of section 12 of FOIA, particularly regarding the method and rigour required in making cost estimates.
3. The extent of the tribunal’s role in reviewing or remaking cost estimates made by the public authority.
4. The validity of the Appellant’s proposed scientific approach to searching and estimating compliance costs under FOIA.
5. The appropriate standard of expertise and evidence required from public authorities in making and justifying cost estimates.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued for a rigorous scientific approach to searching for and estimating the cost of complying with FOIA requests, suggesting that modern computing techniques could make the search more efficient and reduce costs.
• He contended that the public authority’s estimate was not sensible, correct, or sufficiently accurate, and that the First-tier Tribunal erred by not allowing him to perform his own searches or appoint an assessor.
• The Appellant asserted that the public authority should employ or procure computer expertise to meet FOIA obligations and that the Information Commissioner and tribunal should not remake estimates but only assess whether an estimate was made.
• He questioned the legitimacy of the public authority’s cost estimate and requested more transparency and verification of the methods used.

Appellee's Arguments (Information Commissioner)

• The Information Commissioner supported a traditional legal approach, emphasizing the statutory framework and the authority’s discretion in making a subjective estimate of costs based on how it holds and retrieves information.
• Section 12 operates as a predictive estimate and protects public authorities from burdensome requests, with the duty to assist requesters under section 16 balancing this.
• The tribunal’s role is to determine whether the Commissioner’s decision notice is lawful, not to remake or conduct new searches or cost estimates.
• The Commissioner and tribunal properly required persuasive evidence from the public authority about how the estimate was made and rejected the Appellant’s scientific rigour as an interpretative standard for FOIA.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework of FOIA, particularly section 12, which allows refusal of requests exceeding a prescribed cost limit. It emphasized that the right to information under section 1(1) carries a correlative duty on public authorities to comply unless exempted. Section 12 is a protective measure against excessive burden.

The court rejected the Appellant’s argument that FOIA should be interpreted according to a rigorous scientific standard for searching and estimating costs. Instead, it held that such rigour applies at the evidential level rather than the interpretative legal level.

The court acknowledged that while no search can guarantee retrieval of all relevant information, FOIA does not permit failure to comply as the only option. Public authorities must make reasonable efforts and provide assistance under section 16.

The tribunal’s role was clarified as reviewing the lawfulness of the Information Commissioner’s decision notice, not remaking cost estimates or conducting alternative searches. The estimate is subjective to the authority but must be reasonable and based on how the information is held and retrieved.

The court accepted that the estimate need only be sufficiently precise to determine if the cost limit is exceeded and that the ordinary meaning of “estimate” applies, not a scientific precision standard.

The Appellant’s contention that authorities must employ computer expertise to implement his approach was dismissed; the reasonableness of the estimate includes consideration of staff capability and the need to procure expertise.

The court found no error of law in the First-tier Tribunal’s dismissal of the appeal and endorsed its approach to testing the evidence and arguments presented by the Appellant.

Holding and Implications

The Upper Tribunal DISMISSED the appeal, holding that the First-tier Tribunal’s decision did not involve an error of law. The court confirmed that the Information Commissioner’s decision notice was lawful and that the public authority’s reliance on section 12 of FOIA was justified.

The direct consequence is that the public authority is not required to comply with the FOIA request as it would exceed the cost limit. The decision affirms the established framework for assessing cost estimates under FOIA and clarifies the tribunal’s limited role in reviewing such estimates. No new legal precedent was established beyond the application of existing principles.