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In s11 of FoIA “[w]here the [requestor] expresses a preference for communication by any one or more…means…the public authority shall so far as reasonably practicable give effect to that preference”. But what does that mean in practice? Must the public authority provide everything that it is reasonably practicable until it ceases to be practicable, or should the public authority consider the totality of the information requested? This was the issue in Walawalkar v (1) Information Commissioner; (2) Maritime and Coastguard Agency [2025] UKUT 105 (AAC).
Mr Walawalkar made a request, on behalf Liberty Investigates, for information to the Maritime and Coastguard Agency (MCA). The request was about distress calls made to HM Coastguard over a period of a week from people in the English Channel:
“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 a significant number of such recordings.
The applicant argued that the information could be transcribed and this would be his preferred means of having the information communicated to him under s.11. As such, the MCA was obliged so far as reasonably practicable to give effect to that request.
The MCA estimated that transcribing the recordings of the 55 calls it held would require more than 41 hours of staff time.
The applicant argued for a ‘sliding scale’ test, i.e. one which allows for the requested information to be provided in the preferred means up the point that it is no longer reasonably practicable for the public authority to do so. The ICO contended for an ‘all or nothing’ test, i.e. one which focuses on the totality of the information requested and asks whether it is reasonably practicable to provide all of that information in the preferred means.
The Upper Tribunal (Judge Wright) preferred the ‘all or nothing’ test, explaining at [84]:
“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.”
Aside from the above, which helpfully clarifies the law, the judgment is a useful reminder of the importance of seeing the wood for the trees: s11 should only be considered if and when no exclusion or exemption applies to the information. In this case, there may well have been exclusions or exemptions which applied and which would have resolved the application against disclosure (and therefore before any consideration of s11 arose).
The judgment also makes clear that s11 is not relevant to whether information is held for the purposes of s.1: the latter is a logically prior and separate issue under the legislation.
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.
