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Two FTT decisions made in October about reliance upon the FOIA section 12 cost exemption are worthy of note: Cunliffe v ICO [2024] UKFTT 00879 (GRC) and Brida v ICO [2024] UKFTT 00876 (GRC). In the former, it was held that the Financial Ombudsman Service was entitled to rely upon the section 12 exemption. In the latter, four NHS Trusts had not been so entitled.
Common to both cases was discussion of whether cheaper alternatives to the method of providing the requested information contemplated by the requestee when assessing whether the compliance costs would exceed the “appropriate limit” should have been considered and / or employed.
Mr Brida’s request was for a large number of the Ombudsman Service’s internal guidance notes. There was no dispute that the costs of complying with Mr Brida’s request which would be incurred by using the methodologies available to the Ombudsman Service without downloading and installing new software or re-configuring existing technology would exceed the “appropriate limit” (18 hours’ work). Yet Mr Brida suggested that by automating some of the processes required to comply with the request, using software downloadable from the internet, some of which was available free of charge, the costs of complying with his request would be reduced to below the “appropriate limit”. He argued that section 12 was not engaged because there no costs estimate had been prepared for the alternative methodology he was proposing. The FTT stressed that the need for an estimate under section 12 does not oblige a public authority to produce an estimate in relation to each alternative method put forward by the requestor. Having considered the Ombudsman’s evidence relating to its existing systems and the requirements for the introduction of new software (or re-configuration of existing software), the FTT observed that a public authority is not required “actively to research and seek out any alternative methodologies not currently known or available to it, to download install and test alternative software or to configure applications not currently configured, or risk falling foul of a finding by a tribunal that some other alternative methodology existed that might have completed the process in less than 18 hours”. That would, in its view, render section 12 unworkable.
Ms Cunliffe had requested information from 18 different NHS Trusts relating to recruitment campaigns run by them. In particular, she sought the number of applicants, as well as those shortlisted and offered in a 12-month period, broken down by ethnicity, for a range of groups of staff. 13 Trusts provided the information requested, 5 did not. The position of the 4 NHS Trusts whose decisions were the subject of the appeal was that there were accuracy concerns about the reports which could be run from the Trusts’ applicant tracking system, which meant that the request could only be answered by conducting a manual analysis to produce a report. That manual analysis would take over 18 hours, thus engaging section 12. The difficulty for the NHS Trusts is that they produced no evidence in support of the technical functionality of their systems, either at the ICO stage or before the FTT (indeed they did not participate in the appeal). The only evidence available about the functionality of the system came from Ms Cunliffe, who had first hand experience of the system used by the Trusts, which was at odds with the Trusts’ position. Moreover, her position was supported by the fact that 13 Trusts she had made requests of, which used the same system, had provided the information she had requested. One Trust had provided the raw data, which she took no issue with. The 4 Trusts whose decisions were being considered by the FTT provided no data at all. In the circumstances, the FFT replaced the ICO’s decision that the four Trusts were entitled to rely on section 12, them being directed to respond to the relevant part of Ms Cunliffe’s request.
Reading the FTT decisions together serves to highlight that:
I) a public authority is not required actively to research and seek out any alternative methodologies not currently known or available to it which might reduce costs to a level which does not engage section 12; BUT
II) where a public authority wishes to rely upon a barrier to an alternative, cheaper methodology for compliance with an information request being proposed by a requester, it should be prepared to evidence this.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
