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You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Morris v Information Commissioner [2025] UKFTT 376 (GRC) (28 March 2025) URL: http://www.bailii.org/uk/cases/UKFTT/GRC/2025/376.html Cite as: [2025] UKFTT 376 (GRC) |
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(General Regulatory Chamber)
Information Rights
Heard on: 19 February 2025 |
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B e f o r e :
TRIBUNAL MEMBER MARION SAUNDERS
TRIBUNAL MEMBER PAUL TAYLOR
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DAVID MORRIS |
Appellant |
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- and - |
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THE INFORMATION COMMISSIONER |
Respondent |
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For the Appellant: Mr David Morris by CVP
For the Respondent: Written Submissions
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Crown Copyright ©
Decision: The appeal is Dismissed. The public authority was entitled to rely on s. 12 of the Freedom of Information Act 2000 ("FOIA"). The public authority complied with its s 16 duty to provide advice and assistance.
Introduction
General Background
Request and Response
"Under the FOIA please provide the information held in part of Legal Professional Privileges the Department sent to the ICO 2 & 3, however in a better way than in 4 & 5."
a. For both 2 & 3 - A letter from the ICO to Mr Morris dated 19 February 2009 regarding a complaint made to the ICO about BERR's (a predecessor of DESNZ) handling of a Data Protection Act (DPA) 1998 Subject Access Request (SAR).
b. Whereas 4 & 5 relate to a letter from the then Director General, Legal at BERR dated 11 April 2008 regarding an Internal Review for a FOIA request made by Mr Morris.
"DESNZ interpreted the request to be for all the papers sent to the Commissioner in relation to a subject access complaint as referenced in the letter dated 19 February 2009 attached to [Mr Morris's] request. DESNZ responded on 26 September 2023. DESNZ refused the request relying on FOIA section 12 – cost of compliance. DESNZ advised [Mr Morris] that they may wish to narrow the scope of the request but that any information found was likely to be covered by Legal Professional Privilege ("LPP") and may be exempted from disclosure."
Complaint to the Commissioner
The decision notice
The appeal to the tribunal
a. DESNZ estimate of search work undertaken and additional time needed is grossly excessive and the relevant documents could be obtained in "around 2 minutes" if the manual and electronic search facilities of DESNZ contracted archival company were used.
b. The Decision Notice is incorrect in law as s.12(2) does not apply.
ICO response
a. The search would need to cover electronic records dating back to 1996 potentially held on different systems across various departments, record management systems, and legacy filing systems (paragraph 27).
b. That the information requested relating to correspondence with the Commissioner would have been originally sent over 15 years ago with several machinery of government changes in the meantime. With the ability to identify the specific information in scope of the request and whether it was still held consequently being a significant challenge (paragraph 29).
c. DESNZ conducted an initial search of the department's electronic filing system and the FOI team were expressly asked to search their systems to try and identify the relevant documents (noting that like the Commissioner the DESNZ FOIA team operated a three-year retention period). Both failed to locate any further relevant information and so any further work to establish whether any information relevant to the request was held by DESNZ would require the trawling through of a significant amount of previous SAR requests and correspondence with Mr Morris (paragraph 30).
a. Mr Morris' ground is "unclear" and does not set out or demonstrate how the decision notice is wrong in law.
b. The Commissioner conducted an appropriate investigation of DESNZ and their handling of the request. The Commissioner was satisfied with the explanations provided by DESNZ and submits he applied the correct test appropriately and explained his reasoning for his conclusions within the decision notice.
c. The onus is on Mr Morris to demonstrate that the decision notice is wrong in law and/or how the Commissioner should have used his discretion differently, but the Grounds fail to identify either.
Reply by Mr Morris to the ICO Response
The relevant law
1 General right of access to information held by public authorities
(1) Any person making a request for information to a public authority is entitled—
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
(2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.
...
12 Exemption where cost of compliance exceeds appropriate limit
(1) Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.
(2) Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit.
(3) In subsections (1) and (2) "the appropriate limit" means such amount as may be prescribed, and different amounts may be prescribed in relation to different cases.
...
58 Determination of appeals
(1) If on an appeal under section 57 the Tribunal considers—
(a) that the notice against which the appeal is brought is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.
(a) determining whether it holds the information;
(b) locating the information, or a document which may contain the information;
(c) retrieving the information, or a document which may contain the information; and
(d) extracting the information from a document containing it.
"An estimate involves the application of a method to give an indication of a result. In the case of FOIA, the result is whether the cost of compliance would exceed the appropriate limit (regulation 4(1)). It follows that the method employed must be capable of producing a result with the precision required by the legislation in the circumstances of the case. The issue is whether or not the appropriate limit would be reached. The estimate need only be made with that level of precision. If it appears from a quick calculation that the result will be clearly above or below the limit, the public authority need not go further to show exactly how far above or below the threshold the case falls."
Issues and evidence
a. What was the scope of the request?
b. Whether DESNZ was entitled to rely on section 12 FOIA (cost of compliance) to withhold the requested information. Has DESNZ provided a reasonable estimate that the cost of complying with the Request would exceed £600 representing 24 hours of work that is sensible, realistic and supported by cogent evidence?
c. Did DESNZ comply with its duty under section 16 to provide advice and assistance?
a. A bundle of open documents, which includes the decision notice, the appeal, and responses amongst other documents.
b. A closed bundle containing disputed information and confidential investigation information.
c. Oral submissions from Mr Morris.
a. His request was broader than just a single letter identified during the internal review on this request (which itself was previously the subject of an unsuccessful request by Mr Morris seeking release of that document, see paragraphs 45-50 of the DN). He stated his request was not just for that document, but also for all the legally professionally privileged documents sent to the ICO in relation to the previous subject access request he had made about that document.
b. In line with his grounds of appeal, he set out his view that given DESNZ had a standing contract with a particular archiving firm who stored both digital and hard copy records for them making it possible to resolve the request "in 2 minutes" and so claims of exceeding the cost limit could not be reasonable.
Discussion and conclusions
Findings of fact
The scope of the request
Was the estimate sensible, realistic and supported by cogent evidence?
a. An estimated total of 10 hours of electronic searches undertaken on the departmental records management system looking for information within scope in the relevant period, as well as searches of personal email folders, correspondence and an unsuccessful attempt to access the relevant legacy electronic filing system.
b. An unsuccessful attempt to search the FOI Team records for relevant material, which was unsuccessful because a retention period of 3 years applied to such records and the material sought significantly predates that.
c. An estimated total of 4 hours of general searching undertaken by the Knowledge and Information Management Team across all of the Department's records including historic archives using specific keyword and period specific search terms.
d. An estimated total of 2 hours of additional searching carried out by Policy Officials using specific keywords and search terms relating to FOIA requests and the relevant period.
e. Searches by DESNZ's Deputy Data Protection Officer for correspondence relating to the relevant previous request amongst sizeable records of Mr Morris' previous requests.
Section 16 Compliance
Conclusion
Signed Thomas Barrett
Date: 27/3/25
Note 1 See Paragraph 19 of David Morris v. ICO EA/2017/0183 Heard on 14 December 2017 [Back]