Commiissioner of Police for the Metropolis v (1) The Information Commissioner (2) Donnie Mackenzie (Information rights : Freedom of Information - exceptions)

Factual and Procedural Background

The Plaintiff made a three-part request under the Freedom of Information Act 2000 ("FOIA") to Company A for data about joint agency operations involving surveillance. Company A refused the request on the grounds that compliance would exceed the cost limit set out in section 12 of FOIA. The Plaintiff complained to the Information Commissioner, who issued a decision notice upholding Company A's application of section 12 and its duty under section 16 to advise and assist. The Plaintiff appealed to the First-tier Tribunal ("the Tribunal"), which found Company A in breach of its section 16 duty but did not decide on the section 12 issue, and allowed the appeal. Company A then appealed to the Upper Tribunal with permission from the Tribunal.

Legal Issues Presented

1. Whether the Tribunal applied the correct legal standard in assessing Company A’s duty under section 16 of FOIA to provide advice and assistance to the Plaintiff.
2. Whether the Tribunal’s finding that Company A could have advised the Plaintiff to narrow the request to part (1) alone, thereby bringing it within the cost limit, was sustainable on the evidence.
3. Whether the Tribunal adequately reasoned its conclusion that part (1) of the request could be answered within the section 12 cost limit.

Arguments of the Parties

Appellant's Arguments (Company A)

• The Tribunal applied too high a standard in respect of the section 16 duty, which should require only that obvious alternative formulations of the request be suggested.
• The Tribunal’s conclusion that Company A could have advised the Plaintiff to narrow his request to part (1) alone was unsustainable given the evidence.
• The Tribunal’s conclusion that part (1) of the request could be answered within the cost limit was unreasoned, inconsistent, and unsupported by the evidence.

First Respondent's Arguments (Information Commissioner)

• Supports the Appellant’s grounds of appeal regarding the section 16 duty and cost limit application.

Second Respondent's Position (Plaintiff)

• Declined to make submissions before the Upper Tribunal but is assumed to support the Tribunal’s conclusion on section 16.

Table of Precedents Cited

Court's Reasoning and Analysis

The Upper Tribunal found that the First-tier Tribunal erred in law by applying too high a standard to the section 16 duty. However, it did not need to resolve this issue definitively because the appeal succeeded on other grounds.

Regarding the section 16 duty, the Upper Tribunal concluded that the First-tier Tribunal’s finding that Company A should have advised the Plaintiff to narrow the request to part (1) alone was unsustainable. The evidence showed that the original request was broad, covering multiple units and agencies, and that even part (1) alone would exceed the cost limit. The suggestion by Company A’s witness that a more narrowly defined request might fall within the cost limit did not realistically apply to the Plaintiff’s original request.

On the section 12 cost limit, the Upper Tribunal found that Company A’s cost estimates were reasonable, supported by detailed evidence including the number of command units, officers involved, and time estimates for assessing relevant operations. The Tribunal’s contrary conclusion lacked adequate reasoning and was inconsistent with the evidence.

The Upper Tribunal emphasized that whether a request exceeds the cost limit depends on the request’s breadth and the public authority’s record-keeping practices, noting that FOIA does not impose particular organisational or record-keeping requirements on public authorities.

Given the detailed written submissions and absence of requests for oral hearing, the Upper Tribunal proceeded to determine the appeal on the papers and chose to re-make the Tribunal’s decision rather than remit for re-hearing.

Holding and Implications

The Upper Tribunal allows the appeal, sets aside the First-tier Tribunal’s decision, and re-makes the decision to uphold the Information Commissioner’s decision notice dated 2 December 2013 (FS50503796), dismissing the Plaintiff’s appeal.

The direct effect of this decision is that Company A’s refusal to disclose information under section 12 of FOIA is upheld, and the Plaintiff’s request is dismissed. No new legal precedent is established beyond clarifying the application of the section 16 duty and the reasonableness required in cost limit estimates. The appeal reinforces the principle that FOIA requests must be sufficiently focused to fall within cost limits and that public authorities are not required to exercise undue ingenuity in refining requests.