George Greenwood v Information Commissioner

Factual and Procedural Background

The Appellant submitted a Freedom of Information Act (FOIA) request to Company A on 27 August 2018, seeking all documents prepared between 1 January 2010 and 12 May 2010 intended for a potential Prime Minister in the event of a general election outcome. The request specifically sought information provided to a named individual and requested delivery in a machine-readable format. Company A responded on 27 September 2018, refusing disclosure based on exemptions under section 36(2)(b)(i) and (ii) FOIA. The Appellant requested an internal review, which was not provided, leading to a referral to the Information Commissioner (the Commissioner).

The Commissioner issued a decision notice on 8 July 2020, finding that Company A had not obtained the required opinion of a Qualified Person to rely on section 36(2) FOIA and therefore could not rely on that exemption. Despite this, the Commissioner did not order disclosure due to practical difficulties: the original hard copy information had been lost, and electronic retrieval would incur prohibitive costs. Company A acknowledged the loss of the hard copy and the absence of a located digital copy after extensive searches.

The Appellant appealed the Commissioner's decision, challenging the exercise of discretion not to require disclosure and disputing the relevance and application of section 12 FOIA and the Fees Regulations. The appeal was heard remotely before Judge [Last Name] and Tribunal Members.

Legal Issues Presented

1. Whether the Commissioner properly exercised discretion under section 50(4) FOIA in deciding not to require Company A to take steps to disclose the requested information despite rejecting reliance on the section 36 exemption.
2. The applicability and role of section 12 FOIA and the Fees Regulations in circumstances where the requested information had been located, retrieved, and then lost, leading to costly further searches.
3. Whether the Commissioner erred in her interpretation and application of the legal provisions concerning the obligation to disclose and the discretion to require steps for disclosure.

Arguments of the Parties

Appellant's Arguments

• Company A did not rely on section 12(1) FOIA as a basis for refusal.
• Section 12 FOIA was not applicable because the costs cited related to internal review, providing information to the Commissioner, or complying with the Information Notice, rather than responding to the original request.
• The costs incurred were a consequence of Company A's failure to preserve the information initially obtained.
• The Commissioner’s decision not to order disclosure was not sufficiently reasoned or transparent.
• If section 12 FOIA were applicable, it should not cover costs arising from having to search for lost information after initial retrieval.

Company A's Arguments

• The hard copy of the requested information was lost or destroyed.
• At the time of the Commissioner’s decision, no digital copy had been located despite searches.
• Further digital searches would require significant resources, imposing prohibitive costs.
• The Commissioner did not err in exercising discretion under section 50(4) FOIA not to require disclosure steps.
• The Commissioner was entitled to consider section 12 FOIA and the Fees Regulations in her discretion.
• Subsequent searches confirmed that the information was no longer held.
• The Commissioner inaccurately stated that the information existed electronically when only a possibility had been indicated.

Commissioner's Position

• Due to the unique circumstances, including the loss of the original hard copy and technical difficulties in retrieval, the Commissioner exercised discretion not to require disclosure steps under section 50(4) FOIA.
• The Commissioner’s references to section 12 FOIA were hypothetical, as Company A did not rely on it.
• The Commissioner regretted the handling of the matter but considered further appeals to be academic and a waste of resources.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal examined the factual matrix, including the loss of the original hard copy and the extensive but unsuccessful searches for a digital copy. The Commissioner’s refusal to accept reliance on section 36(2) FOIA was upheld due to the absence of a Qualified Person’s opinion. However, the Commissioner exercised discretion under section 50(4) FOIA not to require Company A to take steps for disclosure because such steps would be wholly impractical and involve prohibitive costs, consistent with the "retrospectivity difficulty" recognized in Gaskell.

The Tribunal found that references to section 12 FOIA in the decision notice were hypothetical and not determinative, as Company A had not relied on this exemption at the relevant time. The Tribunal agreed that the Commissioner’s discretion was properly exercised given the circumstances and that further searches were unlikely to yield the information.

The Tribunal also commented on procedural deficiencies, including the loss of information by Company A and the confusing nature of the Commissioner’s decision notice, which did not clearly articulate the legal basis for the discretion exercised.

Holding and Implications

The appeal is DISMISSED.

The Tribunal upheld the Commissioner’s exercise of discretion under section 50(4) FOIA not to require Company A to take steps to disclose the requested information due to the impracticality and prohibitive costs involved. The decision confirms that where information has been lost and retrieval is excessively costly, the Commissioner may properly withhold orders for disclosure despite rejecting exemption claims.

No new precedent was established beyond the application of existing principles, and the direct effect is that Company A is not required to disclose the information. The Tribunal emphasized the importance of proper records management and clearer decision notices in FOIA cases.