Summary of Opinion — Appellate Decision

Factual and Procedural Background

The Appellant submitted a freedom of information request to Company A for the number of police officers Company A had arrested since Company A's inception in 2013. Company A refused the request on the basis that the estimated cost of compliance would be £108,390, a figure derived from the need to review 433,588 files and on the basis that the requested information was not recorded as a matter of routine. Company A relied on section 12 of the Freedom of Information (Scotland) Act 2002 and associated regulations, under which a public authority may refuse a request if the reasonably estimated cost of compliance exceeds £600 (calculated by reference to £15 per hour of an employee's time).

The Appellant asked the Respondent to investigate. The Respondent investigated, including information obtained from Company A, and concluded that Company A’s cost estimate for locating, retrieving and providing the information was reasonable. The Respondent assessed the request on the basis of Company A’s current recording and data retrieval procedures and did not assess the potential capabilities of an improved data system. The Respondent therefore accepted that section 12 applied and that Company A was under no duty to provide the requested information.

The Appellant appealed the Respondent’s decision to the court. Under section 56 of the Act, the court’s supervisory jurisdiction permits interference only where the Respondent committed an error of law. The Respondent also made a separate finding that Company A breached section 15 of the Act (the duty to provide advice and assistance), but ordered only that Company A should direct the Appellant to any other public authority which might hold the information.

Legal Issues Presented

1. Whether the Respondent committed an error of law in accepting Company A's cost estimate and concluding that section 12 permitted refusal of the request.
2. Whether the public interest in disclosure required a different approach despite the estimated cost exceeding the statutory limit.
3. Whether the Respondent should have had regard to the potential for a modernised or improved data-management system when assessing the cost of compliance.
4. Whether the Respondent was obliged to obtain external expert advice about alternative, less costly retrieval methods.
5. Whether the Respondent erred in the remedial step taken after finding a breach of the section 15 duty (advice and assistance).
6. Whether the Appellant’s generalised allegations of bias, breach of natural justice, irrationality or unreasonableness on the part of the Respondent disclosed an error of law.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that Company A's current recording and data-management systems are out of date, highly inefficient and conducive to a lack of transparency and accountability, and that reliance on those systems produced an unreasonable cost estimate (over £100,000).
• The Appellant argued the Respondent should have taken into account the potential for a modern, automated system that would allow a less costly response to the request, and should have sought expert advice on that issue.
• The Appellant submitted that the Respondent failed to have sufficient regard to the public interest in disclosure.
• The Appellant complained of breaches of natural justice, bias, irrationality and unreasonableness in the Respondent's conduct and decisions, and argued that the Respondent’s limited remedial order under section 15 was inadequate.

Respondent's Position (as described in the opinion)

• The Respondent investigated and concluded that Company A's cost estimate for locating, retrieving and providing the information was reasonable on the basis of how Company A actually records and holds information.
• The Respondent treated the statutory cost-limit regime under section 12 as applicable to all requests and considered the public interest test inapplicable because refusal was not based on a statutory exemption.
• The Respondent did not err in law by assessing Company A's estimate in light of Company A's current systems rather than hypothetical upgraded systems; the statutory focus is on how the authority holds the information.
• The Respondent found, on his own initiative, that Company A breached the duty under section 15 by not providing advice or assistance, but imposed a limited remedial order directing Company A to point the Appellant to other public authorities that might hold the information.

Table of Precedents Cited

Court's Reasoning and Analysis

The court set out its supervisory role under section 56 of the Act: it may interfere only for an error of law. It emphasised a number of interrelated propositions drawn from statute and precedent.

1. Statutory framework: section 12(1) allows a public authority to refuse a request where the estimated cost of complying would exceed £600; the relevant regulations define the projected costs as the total costs reasonably estimated that the authority is likely to incur in locating, retrieving and providing the requested information.
2. Scope of review: consistent with earlier authorities, the court cannot reweigh factual assessments or substitute its own view of how Company A should manage records; it can only determine whether the Respondent made an error of law in accepting Company A's estimate and in the manner in which the statutory provisions were applied.
3. Focus on reality of authority's systems: the court accepted the analysis from similar south-of-the-border authority that the focus must be on how the public authority actually holds and would retrieve the information, not on hypothetical upgraded systems. Consequently the Respondent was entitled to proceed on the basis of Company A's existing recording systems.
4. Public interest: the court explained that the public interest balancing exercise arises where refusal is founded on reliance on a statutory exemption. Here, because refusal was based on cost under section 12, the public interest test did not arise.
5. Expert evidence and alternative systems: although sympathetic to the Appellant's concerns about inefficiency, the court concluded that the Respondent did not err in law by not conditioning his decision on the possibility of an upgraded system or by not obtaining independent expert evidence; those matters fell within the Respondent's evaluative role and the statutory focus on actual retrieval methods.
6. Section 15 breach and remedy: the Respondent himself found that Company A breached the duty to provide advice and assistance under section 15 by not advising how a narrower request might meet the cost limit. The Respondent's remedial order — to direct the Appellant to other public authorities that might hold the information — was limited. The court regarded the Respondent's approach to remedy as an evaluative judgment; it did not identify any legal error in how the Respondent exercised his discretion in this respect.
7. Generalised procedural complaints: allegations of bias, breach of natural justice, irrationality and unreasonableness were considered and rejected as not disclosing any error of law.

On this basis the court concluded that the Respondent had correctly identified the statutory task and carried it out without committing an error of law.

Holding and Implications

Holding: The court REFUSED THE APPEAL. It held that the Respondent did not commit an error of law in accepting Company A's cost estimate and in concluding that section 12 permitted Company A to refuse the request.

Implications

• Direct effect: The Respondent's decision stands. Company A is not under a statutory duty to provide the requested information because the estimated cost of compliance exceeds the statutory £600 threshold.
• Section 15 finding: The Respondent's finding that Company A breached the duty to provide advice and assistance was noted; the remedial step ordered by the Respondent (to direct the Appellant to other authorities that might hold the information) was left intact. The court did not require any further remedial action by the Respondent.
• Scope of judicial review reaffirmed: The decision reaffirms that, under the statutory scheme and established authorities, courts reviewing decisions of the Respondent are constrained to errors of law and should afford deference to the Respondent's specialist evaluative judgments about how a public authority holds and would retrieve information. The court will not, in the absence of legal error, substitute its own view about administrative efficiencies or record-keeping practices for that of the Respondent.
• No new legal principle: The court did not lay down a new precedent changing the statutory focus; rather it applied existing authorities to confirm that the statutory assessment is made by reference to how an authority actually holds information and the likely costs of retrieval on that basis.

Anonymization note: All personally identifiable names and specific entity names appearing in the original opinion have been replaced with consistent, generic placeholders (for example "Appellant", "Respondent", "Company A", "Judge [Last Name]", and "Attorney [Last Name]") in order to preserve confidentiality while accurately reflecting the content and reasoning of the provided opinion.