How does a public authority deal with an FOI request where the applicant requests information in a format in which it is not readily available? Section 11 of the Freedom of Information Act 2000 states:
“(1) Where, on making his request for information, the applicant expresses a preference for communication by any one or more of the following means, namely—
(a)the provision to the applicant of a copy of the information in permanent form or in another form acceptable to the applicant,
(b)the provision to the applicant of a reasonable opportunity to inspect a record containing the information, and
(c)the provision to the applicant of a digest or summary of the information in permanent form or in another form acceptable to the applicant,
the public authority shall so far as reasonably practicable give effect to that preference.”
“(2) In determining for the purposes of this section whether it is reasonably practicable to communicate information by particular means, the public authority may have regard to all the circumstances, including the cost of doing so.”
A recent appeal decision of the Upper Tribunal sheds light on the meaning of “reasonably practicable” under section 11 and in particular whether it requires information to be disclosed in the requested format up to the point where it is no longer practicable.
In Walawalkar v (1) Information Commissioner; (2) Maritime and Coastguard Agency [2025] UKUT 105 (AAC), Mr Walawalkar made an FOI request, on behalf Liberty Investigates, for information to the Maritime and Coastguard Agency (MCA) in the following words:
“Please can you provide me the following under the FOI Act:
[1] A copy of the recorded audio of all calls between people at sea in the English Channel and HM Coastguard between 00:01am on 15 November 2021 and 23:59pm on 22 November 2021…Please provide as many of these recordings as is retrievable within the cost limit.
[2] If retrievable within the cost limit, for each audio recording disclosed in response to point 1 – please specify which HM Coastguard control room handled the distress call (eg Dover Maritime Rescue Coordination Centre).
[3] If retrievable within the cost limit, please also provide a transcript of audio recording of all calls requested in point 1.
[4] For each call requested in point 1, please provide the HMCG GIN incident number it relates to.”
The MCA held 55 such recordings. It estimated that transcribing them would require more than 41 hours of staff time which was not reasonably practicable. Mr Walawalkar argued that section 11 involved a ‘sliding scale’ test of providing transcripts of at least some of the information requested up to the point that it was no longer reasonably practicable for the MCA to do so.
The Tribunal rejected Mr Walawalkar’s argument. It ruled that section 11(1) involves an ‘all or nothing’ test which involves asking if it was reasonably practicable for the MCA to provide all of the information in the preferred means (i.e. transcripts of all the audio calls falling within the request). The Tribunal agreed with the ICO which had applied an ‘all or nothing’ approach and so had the FTT.
Judge Wright explained:
“The ICO referred in argument to “the information” being a unitary concept throughout FOIA. I think this is a helpful perspective. The point may be tested by considering the application of section 12 of FOIA and its costs cap. Assuming the information would otherwise be disclosable under section 1 of FOIA, section 12 of FOIA only makes sense, in terms of calibrating the cost of complying with the request for information, if the section 12 estimate is based on the cost of providing all the information requested. Were it otherwise and section 12 involved a sliding scale of compliance, estimating the cost of complying on the basis of as much of the requested information up to the “appropriate limit”, section 12 would have no useful application as it would always oblige a public authority to comply with the request in respect of as much of the information requested up to the appropriate limit. That is not a tenable reading of section 12. It has no ‘sliding scale’ language within it. Moreover, on the face of it Parliament plainly intended that section 12 would apply so as to allow a public authority to refuse the request if complying with it exceeded the appropriate limit. A sliding scale (that is, as much of the requested information as is within the appropriate limit), is not consonant with that statutory intention. The costs estimate in section 12 is about complying with “the request” and that is a request for (all) the information of the description specified in the request.”
The ruling also restated the accepted principle that format requests should only be considered if and when no exemption from disclosure applies to the requested information. In addition, it rejected an argument that the format request is relevant to whether information is held for the purposes of section 1 of FOI. The latter is a logically prior and separate issue under FOI.
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