Upper Tribunal Rejects Preferred Means of Communication Appeal Under FOIA

OUTCOME: Dismissed

1

UKUT 105 (AAC) Appeal No. UA-2024-000250-GIA

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

Between:

[APPELLANT] Appellant - v -

[NAME] First Respondent and

The [NAME] [NAME] Respondent

Before: Upper Tribunal Judge Wright Hearing date: 11 December 2024

Representation: Appellant: [redacted] First respondent: [redacted] [NAME] respondent: [redacted]

On appeal from: Tribunal: First-tier Tribunal (General Regulatory Chamber Chamber) ([NAME]) Tribunal Case No: EA/2023/0096 Tribunal Venue: Remote video hearing Decision Date: 29 December 2023

SUMMARY OF

DECISION This appeal is about a request for [NAME] (distress calls from [NAME] at sea) which was held in audio form by the [NAME] respondent. The appellant argued that the [NAME] could be transcribed and that would amount to his preferred means of having the [NAME] communicated to him under section 11(1) of the Freedom of [NAME] 2000 (FOIA). Other, and logically prior, grounds for refusing the request had been relied on by the [NAME], but at [NAME] and FTT stage the focus was solely on section 11(1) of FOIA (in relation to transcripts of the

[APPELLANT] v [NAME] and [NAME] no. UA-2024-000250-GIA [2025] [UKUT] 105 (AAC)

2 audio calls). The [NAME] was required to give effect to the appellant’s preferred means of communication “so far as reasonably practicable” under s.11(1). The appellant argued that this involved a ‘sliding scale’ test of providing transcripts of at least some the [NAME] requested up to the point that it was no longer reasonably practicable for the [NAME] to do so.

The decision rejects this argument. It holds that section 11(1) involves an ‘all or nothing’ test which involves asking if it was reasonably practicable for the [NAME] to provide all of the [NAME] in the preferred means (i.e. transcripts of all the audio calls falling within the request). The [NAME] had applied an ‘all or nothing’ approach and the FTT, although its reasoning was perhaps less than clear, therefore made no material error of law in dismissing the appellant’s appeal against the [NAME]’s decision.

The decision also comments on the correct order of adjudication of issues under FOI, and suggests that section 11 should only be considered if and when no exclusion or exemption applies to the [NAME] under FOIA. The decision in addition rejects an argument that the preferred means of communication under section 11(1) of FOIA is relevant to whether [NAME] is held for the purposes of section 1 of FOIA. The latter is a logically prior and separate issue under FOIA.

[NAME] (93) – Freedom of [NAME] – right of access (93.1)

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.]

DECISION

The decision of the Upper Tribunal is to dismiss the appeal.

REASONS FOR DECISION

Introduction

1. This appeal is about section 11 of the Freedom of [NAME] 2000 (“FOIA”) That section, as its heading sets out, is concerned with the means by which communication of the [NAME] requested is to be made to the [NAME].

2. In particular, the appeal raises the issue whether the words (and most relevantly the words I have underlined) in section 11(1) “[w]here the [[NAME]] expresses a preference for communication by any one or more…..means… the [NAME] authority shall so far as reasonably practicable give effect to that preference”, encompass a ‘sliding scale’ test or an ‘all or nothing’ test in terms of meeting the [NAME]’s preferred means of communication.

3. A ‘sliding scale’ test is one which allows for the requested [NAME] to be provided in the preferred means up the point that it is no longer reasonably practicable for the [NAME] authority to do so. The ‘all or nothing’ test, on the other hand, is one which focuses on the totality of the [NAME] requested and asks

3 whether it is reasonably practicable to provide all of that [NAME] in the preferred means.

4. The relevant preferred means of communication of the [NAME] requested in this appeal was transcripts of the audio recordings held by the [NAME] authority.

Factual background

The request

5. Mr [APPELLANT] made a request, on behalf [NAME], for [NAME] to the [NAME] (“the [NAME]”) on 12 August 2022. The request was about distress calls made to [NAME] over a period of a week from [NAME] in the [NAME], and was in the following terms:

“Please can you provide me the following under the FOI Act:

[1] A copy of the recorded audio of all calls between [NAME] at sea in the [NAME] and [NAME] 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 [NAME] control room handled the distress call (eg [NAME]).

[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 [NAME]’s decision

6. The [NAME] in refusing this request on 25 October 2022 relied on section 40(2) of FOIA to withhold the audio recordings of the calls between the [NAME] at sea in the [NAME] and [NAME]. As for the transcripts of such recordings, the [NAME] said that providing transcripts would “create a new dataset and would exceed the cost cap [under section 12 of FOIA]”.

7. Following an internal review, the [NAME] upheld its original decision in respect of the audio recording of the calls and stated that it considered that the transcripts were also personal [NAME] under section 40(2) of FOIA and so were exempt from disclosure under FOIA.

[NAME]’s Decision Notice

8. Mr [APPELLANT] complained about this refusal to [NAME] (“the [NAME]”) under section 50 of FOIA.

4 9. In a Decision Notice dated 24 January 2023 the [NAME] gave the following decision.

“1. The complainant has requested audio recordings of distress calls made from the [NAME] and transcripts of those recordings. The above [NAME] authority…relied on a number of different exemptions as its reasons for not providing the [NAME].

2. The Commissioner’s decision is that it would not be reasonably practicable in the circumstances to expect the [NAME] authority to provide the [NAME] as transcripts and therefore it has complied with its obligations under section 11. The Commissioner considers that the [NAME] authority is entitled to rely on section 40(2) of FOIA to withhold the audio recordings. The [NAME] authority breached section 17 of FOIA in responding to this request.

3. The Commissioner does not require further steps.”

10. The [NAME]’s decision in paragraph 2 of the Decision Notice treated the transcripts of the distress calls differently to the audio recording of those calls. This difference may have reflected the way in which the [NAME] understood the [NAME] to be arguing its case before the [NAME].

11. In terms of the audio recordings, the [NAME] argued (or so the [NAME] understood), in the alternative, that (i) the audio recordings were exempt from disclosure under section 40(2) of FOIA, or (ii) it could rely on either section 12 or 14(1) of FOIA, or (iii) if none of sections 40(2), 12 or 14(1) applied, it could rely on sections 31 and 38 of FOIA to withhold the audio recordings.

12. Turning to the transcripts of those audio calls, the [NAME] argued before the [NAME], again in the alternative, that (i) the transcripts were also exempt under section 40(2) of FOIA, or (ii) that under section 11(1) of FOIA it was not reasonably practicable to provide the transcripts, or (iii) complying with the transcripts request would either exceed the cost limit in section 12 of FOIA or impose a grossly oppressive burden contrary to section 14(1) of FOIA; or (iv) section 31 or 38 of FOIA would apply to the transcripts.

13. It is only the transcripts of the audio calls with which this appeal is concerned. Paragraph 13 of the [NAME]’s Decision Notice said this about the transcripts of the audio calls:

“In the case of the transcripts, the Commissioner notes that the [NAME] authority’s arguments rely on the burden that would be incurred if it were required to carry out the work of transcribing the audio recordings. Therefore, the Commissioner considers that, before he can decide whether the request is burdensome, he must first decide whether the [NAME] authority is obliged to communicate the [NAME] in this manner. If it is not obliged to communicate the [NAME] in this form, there would be no burden as the request could be dismissed out of hand. Therefore the Commissioner will consider the application of section 11 of FOIA first, before going on to consider sections 12 and 14. If the [NAME] authority is obliged to communicate the [NAME] in this format and the Commissioner considers that neither section 12 nor 14 applies, he will finally consider whether any of the Part II exemptions apply.”

5 14. The [NAME] considered there was a circularity to the arguments about the transcripts of the audio calls. On the one hand, the [NAME]’s case was that it need not consider whether it was required to communicate the [NAME] it held (the audio recordings) in the form of a transcript as that [NAME] was [NAME] to at least one exemption from disclosure. On the other hand, as the [NAME] characterised it in the Decision Notice, the [NAME] “need not cite an exemption from disclosure if it could demonstrate that it is not required to comply with this part of the request”. The Decision Notice continued (at paragraph 15):

“The Commissioner could arguably have started anywhere within this circle. However, the issue of whether the [NAME] authority is required to communicate [NAME] in this manner is a novel one (the Commissioner has issued decision notices where a [NAME] sought an audio recording, but was given a transcript instead – but not the other way around) and would benefit from a regulatory decision.”

In other words, as far as transcripts of the audio records of the distress calls were concerned, the [NAME] chose to focus only on the terms of section 11 of FOIA.

15. The [NAME] accepted in principle that a [NAME] has the right to ask for an audio recording to be communicated to them in the form of a transcript. Creating such a transcript did not involve creating new [NAME]. It is simply the process of taking [NAME] held in one form (audio) and converting it into [NAME] form (a written document). Some of the [NAME] (such as a speaker’s tone of voice) would not be transferred into the transcript, but no new [NAME] was being created.

Accordingly, in the [NAME]’s view, section 11 of FOIA would require the [NAME] authority to communicate the [NAME] in the form of a transcript, “unless it [was] not reasonably practicable”.

16. Consistently with what the [NAME] said in paragraph 15 of his Decision Notice, the [NAME]’s consideration was solely in respect of whether section 11 of FOIA supported the [NAME] in not providing Mr [APPELLANT] with the [NAME] he had requested in the form of transcripts. The Decision Notice does not, for example, address whether the transcripts were exempt under section 40(2) of FOIA. It does not do so because the Decision Notice concludes that the [NAME] came to the correct decision under section 11 of FOIA that it was not reasonably practicable to supply the transcripts to Mr [APPELLANT].

17. The [NAME]’s reasons for coming to this conclusion in the Decision Notice were as follows:

“25. The [NAME] authority noted that, based on previous experience, it took, on average, around 45 minutes to produce an accurate transcript of one call. Given that the request encompasses 55 calls, communicating all the [NAME] in this format would require more than 41 hours of staff time.

26. In addition, the [NAME] authority noted that many of the calls are quite distressing to listen to and that transcribing such a large amount of calls would be likely to have an adverse impact on the wellbeing of the staff assigned to such a task.

6 27. Having given consideration to the matter, the Commissioner is of the view that, in the circumstances of this case it was not reasonably practicable for the [NAME] authority to give effect to the complainant’s preference to have the [NAME] communicated to him in this form.

28…….A transcript does not contain [the tone of the caller’s voice] and the conversation itself is only likely to contain a relatively small amount of identifiable [NAME] – which can be easily redacted. The Commissioner considers that it will generally be more reasonable to give effect to a [NAME]’s preference if doing so results in the disclosure of [NAME] which might otherwise have been exempt.

29. The complainant’s request covers a large number of distress calls. Had it been for just one or two, then it would have been more reasonable to expect the [NAME] authority to give effect to this preference, but the [NAME] authority is entitled to take account of the amount of time it would need to spend in order to give effect to the complainant’s preference.

30…..given the potential for such calls to involve sections that are either in a foreign language, heavily accented or barely audible due to the environment or the quality of the phone line, the process needs to be carried out by individuals with a certain amount of skill and experience – meaning that the burden would be concentrated on a relatively small number of the [NAME] authority’s staff…….

32…… the Commissioner… accept[s] that such resources will be finite and that, in dealing with the request, the [NAME] authority will be having to divert them away from its frontline services. Therefore the Commissioner recognises that this does have a small amplifying effect on the burden as a whole – which, as he has outlined above, is already considerable.

33. For these reasons, the Commissioner considers that, in the circumstances, it was not reasonably practicable for the [NAME] authority to communicate the requested [NAME] in the format sought by the complainant.”

18. It is noteworthy that Mr [APPELLANT] in his appeal to the FTT characterised this part of the Decision Notice as adopting an “all or nothing” approach to section 11(1) of FOIA. This can be seen from paragraph 4 of Mr [APPELLANT]’s skeleton argument before the FTT which stated:

“The [NAME]’s DN, issued on 24 January 2023, concluded it is “not reasonably practicable” for the [NAME] to transcribe this entire batch of 55 distress calls, due to the volume of work involved, and therefore no further action was required.”

19. It is inherent in Mr [APPELLANT]’s appeal to the FTT that if the “all or nothing” approach is the correct test under section 11(1) of FOIA, the [NAME]’s Decision Notice was correct and was in accordance with the law. This can be seen from paragraph 44 of the same skeleton argument where Mr [APPELLANT] invited the FTT to conclude it was reasonably practicable for “the [NAME] to disclose at least 32 of the 55 distress call transcripts”. (It appears from later correspondence that the number of distress calls may have been 112. This does not affect the analysis that for Mr [APPELLANT]’s case to succeed, section 11(1) of FOIA has to involve a “sliding scale” test.

7 20. The rest of the [NAME]’s Decision Notice is concerned with disclosure of the audio recording of the distress calls. The [NAME] decided that the audio calls were the personal [NAME] of both the caller and the call handler and were exempt from disclosure under section 40(2) of FOIA. This part of the [NAME]’s decision was not appealed by Mr [APPELLANT].

21. Translating both aspects of the [NAME]’s Decision Notice into the language of section 50 of FOIA, it held that Mr [APPELLANT]’s request for [NAME] (including his request to be proved with transcripts of the distress calls) had been dealt with in accordance with Part I of FOIA.

The First-tier Tribunal’s decision

22. Mr [APPELLANT] was dissatisfied with [NAME]’s decision and appealed to the First-tier Tribunal (“the FTT”) under section 57 of FOIA. The FTT’s task under section 58(1) of FOIA was, relevantly, to decide whether the [NAME]’s Decision Notice was not in accordance with the law. That included the law in Part I of FOIA.

23. It is settled by case law that the language of “not in accordance with the law” in section 58(1)(a) does not import a secondary judicial review test of legality. Instead, the FTT has a full merits jurisdiction on an appeal: see paragraphs [45]- [46] of [NAME] v [NAME] and the Advisory Committee on Business Appointments [2018] UKUT 72 (AAC); [2018] AACR 29 and paragraph [21] of [NAME] v [NAME] [2023] UKUT 143 (AAC).

24. The FTT correctly identified that the [NAME]’s Decision Notice on the transcripts was founded (only) on section 11 of FOIA, and that the [NAME] had held that it would not be reasonably practicable in the circumstance to expect the [NAME] to provide the [NAME] as transcripts.

25. Mr [APPELLANT]’s appeal before the FTT related only to his request to be provided with transcripts of the distress calls. The FTT recorded that there was no dispute between the parties that section 40(2) of FOIA meant the audio recordings were not disclosable under FOIA.

26. The FTT understood Mr [APPELLANT]’s arguments in relation to the transcripts to be:

(i) that section required 11 disclosure in the preferred format ‘so far as is reasonably practicable’ and this required disclosure of as many transcripts as could be provided within the appropriate costs limit. It is this view of the test in section 11 which is described as the ‘sliding scale test’;

(ii) there was a significant [NAME] interest in the [NAME] requested as it related to a time before a tragedy that had occurred in the [NAME] on 24 November 2021 and there was a suggestion the UK and [NAME] were both shirking their responsibility in that time; and

8 (iii) the [NAME]’s response was inconsistent with its response to a previous request in which it had provided Mr [APPELLANT] with transcripts of distress calls.

27. It is fair to say that, even if it was appropriate to consider compliance with section 11 of FOIA first in terms of whether the [NAME] had acted in accordance with Part I of FOIA, the arguments before the FTT on section 11 were in my view clouded unnecessarily (for reasons I will explain shortly) by considerations about cost under section 12 of FOIA and considerations of the [NAME] interest (per paragraph 22(ii) above). Thus the FTT considered the issues before it on section 11 were:

(i) firstly, the extent of the duty under section 11(1) to comply with a [NAME]’s expressed preference for the means by which [NAME] is communicated, and in particular

(a) whether a [NAME] authority is obliged to comply with such a preference up to the limit provided for the costs exemption in section 12 of FOIA, and (b) whether it is necessary to have regard to the [NAME] interest in disclosure of the underlying [NAME]; and

(ii) secondly, whether in the circumstances of Mr [APPELLANT]’s case, the [NAME] was correct to conclude that it was not reasonably practicable for the [NAME] to provide any transcripts to Mr [APPELLANT].

28. This framing of arguments before the FTT may have contributed to the less than clear reasoning of the FTT on what section 11 of FOIA requires in terms of meeting a [NAME]’s preferred means of communication.

29. The internal structure of the FTT’s decision did not assist with this process either. A sub-heading of the FTT’s decision “The Issues for the Tribunal”, which appears before the sub-heading “Conclusions”, contains on its face parts of the FTT’s dispositive reasoning. Thus, the FTT says, at paragraph 11 of its decision:

“On the issue as to whether a [NAME] authority has to comply with an expressed preference as to format, in our view, it must clearly do so, but only as “far as reasonably practicable” per s.11(1).”

With respect, this at seems to be no more than a restatement of the critical words in section 11(1) of FOIA, but with the word “as” used instead of the word “so”. It does not say what the section 11(1) test involves, just that whatever the test might be the [NAME] had to apply it.

30. The FTT went on to find – again under “The Issues for the Tribunal” - that section 12 of FOIA should not be used as a guide to whether it is reasonably practicable to comply with a [NAME]’s expressed preference under section 11. It also in the same section of its decision rejected Mr [APPELLANT]’s argument that the [NAME] interest in disclosure was relevant under section 11 of FOIA. The “Issues for the Tribunal” section of the FTT’s decision then ended with this paragraph:

9 “14…..the Tribunal accept that the Commissioner was correct to conclude that it was not reasonably practicable for the [NAME] to provide any transcripts. The transcripts do not currently exist. If the Tribunal were to require [NAME] to disclose some, firstly they would need to be transcribed, incurring the very burden that [NAME] say prevents them from reasonably practicably doing so. The [NAME] would also need to address redactions in order to account for the s.40(2) exemption which the parties agree should apply. Secondly, the Tribunal would need to find a mechanism under FOIA to draw a line at a certain number or amount of time. As previously argued, that cannot be the mechanism under s.12. The short answer is that no mechanism is provided under FOIA for the time a [NAME] authority must spend complying with a requested format. The only mechanism that does exist is a decision on whether or not it is reasonably practicable to provide any at all.”

31. It is arguably difficult to read the final sentence in this passage as showing the FTT adopted a ‘sliding scale’ test to section 11.

32. The FTT’s decision then sets out what it terms its “Conclusions”, as follows:

“15. In relation to the Grounds of appeal; Ground 1 relates to the Appellant's submission that the [NAME] should have transcribed as many calls as possible within the costs limit in section 12 of FOIA and that section 11 had been misapplied when the Commissioner considered the issue. But section 11 is distinct from section 12, in law and in [NAME] matter, and should not be conflated. The approach set out in respect of section 12 cannot be imported into section 11. A broader approach is permitted when assessing what is reasonably practicable under section 11 FOIA. [NAME] have reviewed the exercise of transcribing the call recordings and have concluded that it would be time consuming, burdensome, and difficult (given the [NAME] matter). [NAME] have concluded the conversion of the [NAME] from one form to [NAME] is not reasonably practicable. [ADDRESS] of Appeal considered an analogous scenario in the [NAME] case and Underhill LJ noted that, "I doubt if it was part of the purpose of the Act to oblige authorities to input [NAME] into a spreadsheet when it does not already exist in that form". While the format differs as to the form that the [NAME] existed in and was to be converted to is different in [NAME], the conclusion is instructive.

16. Ground 2 is that there is a significant [NAME] interest in the disclosure of the call records given the tragedy of 24 November 2021. Section 11 does not include a [NAME] interest assessment, simply an analysis of whether it is "reasonably practicable" for the [NAME] to provide the transcripts of the calls. The argument made by the Appellant is, in our view wrong in law. While he suggests that an assessment of what is "reasonable" must include an analysis of [NAME] interest - with, he submitted, a sliding scale depending on the level of [NAME] interest, for which the conclusion was that something of an extreme [NAME] interest would require a greater effort in order to be "reasonable" – We find this is not only beyond the spirit and wording of the legislation, but a flawed argument. We find the correct analysis of what is reasonably practicable requires an assessment of a myriad of issues which are independent of and do not relate to what is in the [NAME] interest. The Appellant is right to say that the incident of 24 November 2021 is of significant [NAME] interest, and we would not want to suggest otherwise in any way. However, that great [NAME] interest has

10 no impact on or relevance to the assessment of whether it is reasonably practicable for [NAME] to transcribe the call recordings in question.

17. Ground 3 is that [NAME] previously provided transcripts of calls in response to a FOIA request and so should do so again in this instance. We are persuaded by the arguments submitted on behalf of [NAME]. [NAME] is not obliged to provide transcripts of distress calls for all of the reasons set out above. It may voluntarily do so and has done so previously, but this does not undermine [NAME]'s position as to why it is not obliged to do so or, in some way, fetter its ability to raise such an argument. [NAME]'s previous conduct of voluntarily providing transcripts of call recordings does not and could not bind its future conduct and approach or disapply section 11 in some way. The Appellant argues the conduct of [NAME] also release similar material under FOIA and therefore the [NAME] arguments must be flawed. The Tribunal will judge each case on its merits and we find the conduct of [NAME] in this regard has no bearing on [NAME]. This conduct that may occur in some instances does not impact upon the assessment specific to this [NAME] in these particular circumstances.

18. Further or in the alternative, we accept the reasoning in the DN and find no error in law or in the exercise of his discretion by the Commissioner therein.”

33. It is not clear from these ”Conclusions” what the FTT considered was the correct test under section 11 of FOIA.

34. Nor is it apparent to me why the FTT considered (in paragraph 18 of the decision) that the [NAME]’s Decision Notice not being in error of law and not involving a mis- exercise of the [NAME]’s discretion was an alternative basis for dismissing the appeal under section 58 of FOIA.

Permission to appeal

35. After a contested oral hearing which was attended by counsel for Mr [APPELLANT] and for the [NAME], I gave Mr [APPELLANT] permission to appeal under one of his grounds of appeal. My grant of permission to appeal reads as follows:

“Ground 1

3. The first ground of appeal (”Ground1”) is that the First-tier Tribunal (“the FTT”) erred in law in its approach to section 11 of the Freedom of [NAME] 2000 (“FOIA) by (wrongly) construing it as providing an “all or nothing” requirement. It is argued that the correct approach in law is that section 11 of FOIA provides a ‘sliding scale’, which requires compliance with the [NAME]’s preference up to the point that it is no longer reasonably practicable to do so.

4. The [NAME] (“[NAME]”) argues that the FTT applied a ‘sliding scale’ test under section 11 of FOIA, and was correct to do so, and the FTT in fact found that it was not reasonably practicable for the [NAME] to provide any (i.e. even one) transcript of the audio calls sought by Mr [APPELLANT].

11 5. I give permission to appeal to Mr [APPELLANT] under Ground 1 on the following two bases.

6. First, if the FTT applied an “all or nothing” approach under section 11 of FOIA then it was arguably wrong to do so.

7. The [NAME] relies on paragraph 11 of the FTT’s reasons as showing it did not apply an ‘all or nothing’ test. The difficulty with that submission may be (a) that that paragraph appears under a sub-heading “The Issues for the Tribunal” and before its “Conclusions”; and (b) it may be said that paragraph 11, if it is the FTT’s answer about the legal effect of section 11, is unclear as an answer as it arguably may amount to no more than a summary of the wording of section 11. Moreover, if the “The Issues for the Tribunal” section of the FTT’s reasons does contain (at least part of its) dispositive reasoning, the closing sentence in paragraph 14 of its reasons may arguably point in favour of the FTT having adopted an ‘all or nothing’ test under section 11.

8. A subsidiary aspect of this first part of Ground 1 may be that the FTT’s reasoning is confused, and thus inadequate, as to what it considered was the correct legal construction of section 11 of FOIA.

9. [NAME], if the FTT applied section 11 of FOIA as a sliding scale (as Mr [APPELLANT] and the [NAME] say is the correct construction of its wording), it failed to reason out adequately, and provide sufficient and clear findings of fact, for why under that sliding scale it was not reasonably practicable for the [NAME] to provide any (i.e. even one) transcript of the audio calls Mr [APPELLANT] had requested. A possible arguable difficulty with the FTT’’s reasoning is that it seemingly accepted (per para. 14 of its reasons) that [NAME] had been correct to conclude that it was not reasonably practicable for the [NAME] to provide any transcripts. It is arguable that, although this was the result of [NAME]’s Decision Notice, the analysis in that Notice only concerned the reasonable practicability of the [NAME] providing transcripts of all the calls requested (see paragraphs 13, 25-27 and 29-33 of the Decision Notice), and the Notice arguably did not engage with any sliding scale analysis. It may be further arguable that the approach of [NAME] in the Decision Notice was to tie the section 11 preference to the request for the [NAME] and all the [NAME] requested under that request: see, again, paragraph 29 of the Notice. [NAME] was to correct to do so, if this was his approach, may fall for consideration under the first aspect of Ground 1.”

36. I refused Mr [APPELLANT] permission to appeal on his remaining two grounds of appeal. It is worth setting out my reasons for refusing permission to appeal on those grounds as they explain why, in my judgement, the ‘section 12’ and ‘[NAME] interest’ arguments taken before the FTT were of no merit.

“Ground 2

10. The [NAME] ground of appeal is that the FTT erred in law in not taking account of the costs limit in section 12 of FOIA as a relevant guideline in considering when it may no longer be reasonably practicable to meet the [NAME]’s preference under section 11 of FOIA.

12 11. I refuse permission to appeal on Ground 2. I do so because I cannot find any properly arguable basis for section 12 being relevant to section 11 given that section 11 expressly includes, in section 11(2), the cost of meeting the stated preference of the [NAME]. Once cost has properly been taken into account under section 11 of FOIA, and no criticism is made of the FTT in that regard, I cannot see what section 12 would usefully add to the section 11 test. Moreover, nothing in section 11 or section 12 ties either section to the other, and their statutory effects are different. Section 11 is about the means by which communication of the requested [NAME] is to be made under section 1(1)(b) of FOIA. It is thus predicated on the request not being refused or otherwise affected by anything in sections 2, 9, 12 or 14 of FOIA. Section 12 provides an exemption from the section 1(1)(b) obligation if the costs of compliance are too high. Such an exemption was not in issue in this case. Furthermore, on the structure of FOIA consideration of such an exemption arises before consideration of the section 11 means of communication. This is because if the exemption is made out, the obligations under sections 1(1)(b) and 11 simply do not arise.

Ground 3

12. The third ground of appeal is that as matter of law the [NAME] interest can be taken into account when considering the application of section11 and the FTT was wrong to conclude otherwise.

13. I refuse permission to appeal on Ground 3. The test under section 11 is concerned with whether meeting the [NAME]’s stated preference is reasonably practicable. A test of practicability in terms of the mode of communication of [NAME] has nothing to do with evaluating the [NAME] interest in providing the [NAME]. Like the section 12 argument under Ground 2, considerations of the [NAME] interest arise at a different, and earlier, stage in the consideration of the request. Once the section 11 stage has been reached, considerations of the [NAME] interest are no longer relevant under FOIA.”

Legal framework

Statutory provisions

37. Part I of FOIA is about “Access to [NAME] held by [NAME]”.

38. Section 1 of FOIA falls within Part I of FOIA and provides the core duty under FOIA. Section 1 sets out, insofar as relevant, the following:

“General right of access to [NAME] held by [NAME]. 1(1) [NAME] making a request for [NAME] to a [NAME] authority is entitled— (a) to be informed in writing by the [NAME] authority whether it holds [NAME] of the description specified in the request, and (b) if that is the case, to have that [NAME] communicated to him. (2) Subsection (1) has effect [NAME] to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14….

13 (4)The [NAME]— (a) in respect of which the applicant is to be informed under subsection (1)(a), or (b) which is to be communicated under subsection (1)(b), is the [NAME] in question held at the time when the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the [NAME] is to be communicated under subsection (1)(b), being an amendment or deletion that would have been made regardless of the receipt of the request. (5) A [NAME] authority is to be taken to have complied with subsection (1)(a) in relation to any [NAME] if it has communicated the [NAME] to the applicant in accordance with subsection (1)(b).”

39. Section 2 of FOIA is about the “Effect of the exemptions in Part II [of FOIA]” and, per section 1(2) of FOIA, qualifies the effect of section 1(1). Section 2 provides as relevant:

“Effect of the exemptions in Part II 2(1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any [NAME], the effect of the provision is that where either— (a) the provision confers absolute exemption, or (b) in all the circumstances of the case, the [NAME] interest in maintaining the exclusion of the duty to confirm or deny outweighs the [NAME] interest in disclosing whether the [NAME] authority holds the [NAME], section 1(1)(a) does not apply. (2) In respect of any [NAME] which is exempt [NAME] by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that— (a) the [NAME] is exempt [NAME] by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the [NAME] interest in maintaining the exemption outweighs the [NAME] interest in disclosing the [NAME].”

40. Section 3(2) of FOIA identifies when [NAME] is “held” by a [NAME] authority, as follows:

“[NAME]. 3. (2)For the purposes of this Act, [NAME] is held by a [NAME] authority if— (a)it is held by the authority, otherwise than on behalf of [NAME], or (b)it is held by [NAME] on behalf of the authority.”

41. Section 11 also appears within Part I of FOIA. It is worth emphasising at this stage that, unlike sections 2, 12 and 14 of FOIA (and section 9), the general right of access to [NAME] conferred by section 1(1) of FOIA is not made [NAME] to section 11. This is no doubt because, as the terms of section 11 make plain, it is about the means by which the [NAME] under section 1(1)(b) is to be communicated. Section 11 of FOIA cannot, therefore, alter or affect the right of access conferred by section 1. However, by contrast and per section 1(2) of FOIA, the provisions in sections 12, 14 and the exemptions under section 2 and Part II of FOIA, may cut down or remove that section 1 right.

14 42. Ignoring the parts of section which deal with “datasets”, which are not relevant to this appeal, section 11 provides as follows:

“Means by which communication to be made. 11(1) Where, on making his request for [NAME], 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 [NAME] in permanent form or in [NAME] form acceptable to the applicant, (b) the provision to the applicant of a reasonable opportunity to inspect a record containing the [NAME], and (c) the provision to the applicant of a digest or summary of the [NAME] in permanent form or in [NAME] form acceptable to the applicant, the [NAME] 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 [NAME] by particular means, the [NAME] authority may have regard to all the circumstances, including the cost of doing so. (3) Where the [NAME] authority determines that it is not reasonably practicable to comply with any preference expressed by the applicant in making his request, the authority shall notify the applicant of the reasons for its determination. (4) [NAME] to subsection (1)…., a [NAME] authority may comply with a request by communicating [NAME] by any means which are reasonable in the circumstances.”

43. For completeness, I set out the relevant parts of some of the other provisions (sections 12, 14 and 40 of FOIA) on which the [NAME] relied in refusing Mr [APPELLANT]’s request.

“Exemption where cost of compliance exceeds appropriate limit. 12(1) Section 1(1) does not oblige a [NAME] authority to comply with a request for [NAME] if the authority estimates that the cost of complying with the request would exceed the appropriate limit. (2) Subsection (1) does not exempt the [NAME] 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….

Vexatious or repeated requests. 14(1) Section 1(1) does not oblige a [NAME] authority to comply with a request for [NAME] if the request is vexatious. (2) Where a [NAME] authority has previously complied with a request for [NAME] which was made by [NAME], it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request.

15 [NAME]. 40 (1) [NAME] to which a request for [NAME] relates is exempt [NAME] if it constitutes personal [NAME] of which the applicant is the [NAME]. (2) [NAME] to which a request for [NAME] relates is also exempt [NAME] if— (a) it constitutes personal [NAME] which does] not fall within subsection (1), and (b) the first, [NAME] or third condition below is satisfied. (3A) The first condition is that the disclosure of the [NAME] to a member of the [NAME] otherwise than under this Act— (a) would contravene any of the [NAME] protection principles, or (b) would do so if the exemptions in section 24(1) of the [NAME] Protection Act 2018 (manual unstructured [NAME] held by [NAME]) were disregarded. (3B) The [NAME] condition is that the disclosure of the [NAME] to a member of the [NAME] otherwise than under this Act would contravene Article 21 of the UK GDPR (general processing: right to object to processing). (4A) The third condition is that— (a) on a request under Article 15(1) of the UK GDPR (general processing: right of access by the [NAME]) for access to personal [NAME], the [NAME] would be withheld in reliance on provision made by or under section 15, 16 or 26 of, or Schedule 2, 3 or 4 to, the [NAME] Protection Act 2018, or (b) on a request under section 45(1)(b) of that Act (law enforcement processing: right of access by the [NAME]), the [NAME] would be withheld in reliance on subsection (4) of that section.”

44. Pausing at this point, as they both set out, sections 12 and 14 of FOIA remove the obligation otherwise imposed on a [NAME] authority by section 1(1) of FOIA, and so, if applicable, would remove the section 1(1)(b) obligation (here) on [NAME] to communicate the [NAME] of the description specified in the request to Mr [APPELLANT]. If the obligation to communicate the [NAME] requested has been removed by either of sections 12 or 14 being met, the preferred means of communicating the [NAME] under section 11(1) does not arise. Putting this point [NAME] way, the section 11(1) test only becomes relevant if (and once) the [NAME] authority is under the section 1(1) obligation to communicate the requested [NAME] to the [NAME].

45. Likewise, if the [NAME] requested (or any part of it) is exempt [NAME] under section 40 of FOIA, the effect of section 2 of FOIA is that the section 1(1)(b) obligation also does not apply. If the [NAME] authority is therefore not under an obligation to communicate the [NAME] requested, the preferred means of communicating the [NAME] has nothing on which to bite.

46. Section 16 of FOIA is about the advice and assistance that [NAME] are required to give to [NAME] in relation to their requests. It provides:

“Duty to provide advice and assistance. 16. (1) It shall be the duty of a [NAME] authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for [NAME] to it. (2) [NAME] authority which, in relation to the provision of advice or assistance in any case, conforms with the code of practice under section 45 is to be taken to comply with the duty imposed by subsection (1) in relation to that case”.

16

47. Sections 1, 2, 3, 11, 12, 14, and 16 all fall within Part I of FOIA.

48. Section 50 of FOIA falls within Part IV of FOIA which is concerned with “Enforcement”. Section 50 governs complaints to the [NAME] about a [NAME] authority’s decision on a request for [NAME] and provides (insofar as is relevant) as follows:

“Application for decision by Commissioner. 50 (1)[NAME] (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for [NAME] made by the complainant to a [NAME] authority has been dealt with in accordance with the requirements of Part I. (2) On receiving an application under this section, the Commissioner shall make a decision unless it appears to him— (a) that the complainant has not exhausted any complaints procedure which is provided by the [NAME] authority in conformity with the code of practice under section 45, (b) that there has been undue delay in making the application, (c) that the application is frivolous or vexatious, or (d) that the application has been withdrawn or abandoned. (3) Where the Commissioner has received an application under this section, he shall either— (a) notify the complainant that he has not made any decision under this section as a result of the application and of his grounds for not doing so, or (b) serve notice of his decision (in this Act referred to as a “decision notice”) on the complainant and the [NAME] authority. (4) Where the Commissioner decides that a [NAME] authority— (a) has failed to communicate [NAME], or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or (b) has failed to comply with any of the requirements of sections 11 and 17, the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken.”

49. It is noteworthy that section 50(4) on its face draws a distinction between a failure to communicate [NAME] under section 1(1) of FOIA and a failure to comply with a preferred means of communication under section 11 of FOIA. It thus retains the distinction identified above between the right to be communicated the [NAME] requested under section 1(1) of FOIA and the means by which that communication is to made in section 11 of FOIA. As will be seen later, this distinction was emphasised by the Court of Appeal in paragraph [51] of its decision in Independent Parliamentary Standards Authority v [NAME] and Leapman [2015] EWCA Civ 388; [2015] 1 WLR 2879.

50. Sections 57 and 58 deal with appeals to the FTT against the [NAME]’s Decision Notice under section 50. Sections 57 and 58 provide, relevantly, as follows:

“Appeal against notices served under Part IV. 57 (1) Where a decision notice has been served, the complainant or the [NAME] authority may appeal to the Tribunal against the notice….

17 Determination of appeals. 58 (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.”

51. The last piece of the statutory architecture to which I need refer is section 84 of FOIA. Materially, this provides as follows:

“Interpretation. 84. In this Act, unless the context otherwise requires— “[NAME]”….means [NAME] recorded in any form.”

Relevant case law

52. Three main cases were referred to in the arguments before me. I will take them in the date order in which they were decided

53. The first case is the decision of the [NAME] in Common Services Agency v [NAME] [NAME] [2008] UKHL 74; [2008] 1 WLR 1550 ([NAME]). The decision in [NAME] concerned the interaction between the provisions of the [NAME] Protection Act 1998 and the Freedom of [NAME] (Scotland) Act 2002 (“FOISA”). In particular, it concerned what would be section 40 of FOIA and how the protection against processing of individual’s “personal [NAME]” aligns with the right to [NAME] found in FOISA (and FOIA). For ease of understanding and relevance, I will use the equivalent FOIA provisions when describing the decision in [NAME].

54. The Common Services Agency (the [NAME]) was a special health board in Scotland. One of its functions was the collection and dissemination of epidemiological [NAME] from other Health Boards. A [NAME] asked it for details of all incidents of childhood leukaemia for both sexes by year from 1990 to 2003 for certain postal areas broken down by census ward. It was not doubted that there was a genuine [NAME] interest in the disclosure of this [NAME]. Equally, however, the [NAME] considered there was a significant risk of indirect identification of [NAME] individuals if the [NAME] was disclosed due to the low numbers resulting from the combination of the rare diagnosis, the specified age group and the small geographic area comprised in the request. It therefore refused the request under what would be section 40 of FOIA.

55. Following a complaint to the [NAME] [NAME] (under what would be section 50 of FOIA), the [NAME] [NAME] (“SICO”) issued his decision on the complaint. The SICO accepted that a [NAME] could be identified from the [NAME] at census ward level, that that [NAME] constituted

18 “personal [NAME]”, and it could not be released (under what would be section 40 of FOIA) as to do so would breach the first [NAME] protection principle under Schedule 1 to the [NAME] Protection Act 1998. However, the SICO did not consider that this meant that the MSP should not have been provided with any [NAME]. The SICO had before him guidance describing a process by which, through a disclosure control method called “barnardisation”, statistical [NAME] in small counts could be made less likely to disclose personal [NAME]. Based on this, the SICO concluded that the provision of [NAME] to the MSP in this barnardised form would have provided the closest fit to meeting the MSP’s request. The SICO further decided that the [NAME] could have offered this option to the MSP under its “advice and assistance” duty (found in what would be section 16 of FOIA), and accordingly the [NAME] had not dealt with the MSP’s request in accordance with Part I of FOISA. The SICO ordered the [NAME] to provide the MSP with the census ward [NAME] in a barnardised form.

56. The SICO’s decision was upheld by the Court of Session on the [NAME]’s appeal. On a further appeal by the [NAME] to the [NAME], Lord [NAME] identified a series of six questions that needed to be addressed on the appeal. The first question was whether the [NAME] which SICO had ordered the [NAME] to release in barnardised form to the MSP was “held“ by the [NAME] at the time of the request. The remaining five questions posed by Lord [NAME] in [NAME] only followed on if the [NAME] held the [NAME] requested in barnardised form. Those remaining questions concerned, in effect and recasting the decision to FOIA provisions, whether the [NAME] in barnardised form would be exempt from disclosure under section 40 of FOIA. The decision in [NAME] did not therefore turn on, nor was it about, the application of the equivalent provision in FOISA to section 11 of FOIA.

57. In answering the first question, Lord [NAME] rejected [NAME]’s argument that the process of barnardisation would require [NAME] to be created and until that was done the barnardised [NAME] was not “held” by the [NAME]. In rejecting this argument, Lord [NAME] said, at paragraph [15], the following:

“15. It seems to me that the position that the [[NAME]] has adopted to the request in this case is an unduly strict response to what FOISA requires. This part of the statutory regime should……be construed in as liberal a manner as possible. The effect of barnardisation would be to apply a form of disguise, or camouflage, to [NAME] that was undoubtedly held by the [[NAME]] at the time of the request. It would amount to the provision of that [NAME] in a form that concealed those parts of it that have to be withheld but which would nevertheless, to some degree, convey to the [NAME] [NAME] that was undoubtedly held by the Agency at the time of the request. The process is similar to that of redaction, which involves doing something to [NAME] in the form in which it was held so that those parts of it which are not private or confidential can be released. It would not amount to the creation of new [NAME], nor would it involve the carrying out of any research. It would be to do no more than was reasonable in the circumstances, having regard to the need for the form in which the [NAME] was disclosed to comply with the [NAME] protection principles.”

19 58. This analysis accords with the [NAME]’s analysis in this case that recording the [NAME] in form of transcripts would not involve the creation of new [NAME].

59. However, it is important in my judgement to recognise that what the above passage from [NAME] is concerned with is whether the [NAME] in one form was “held” by the [NAME]. Under FOIA, this is an issue under section 1(1) of FOIA and not section 11.

60. The [NAME] decision goes on to address whether, even if the [NAME] was held by the [NAME] in the barnardised form, it would be exempt from disclosure as personal [NAME] (under what would be section 40 of FOIA). [NAME]’s appeal was allowed by the [NAME] on the basis that the SICO had not made findings showing why the [NAME] in barnardised form “was not personal [NAME] in the hands of [the [NAME]]….. or, if it was, that disclosure of the [NAME] in this form would not contravene any of the [NAME] protection principles”. Again, it needs to be noted that this aspect of the decision in [NAME] was not about the FOISA equivalent to section 11 of FOIA.

61. Mr [APPELLANT] sought to rely on remarks made by Lord [APPELLANT] in paragraph [16] of the [NAME] decision as showing that section 11 was in play at the stage of considering whether [NAME] is “held” for the purposes of section 1(1) of FOIA. That paragraph [16] reads as follows:

“16. The latitude which should be given to a request which cannot be met in the form requested is indicated by section 11(2)(b) FOISA which provides for the provision of a digest or summary of the [NAME], and by section 11(4) which provides that [NAME] may be given by any means which are reasonable in the circumstances. No hard and fast rules can be laid down as to what it may be reasonable to ask a [NAME] authority to do to put the [NAME] which it holds into a form which will enable it to be released consistently with the [NAME] protection principles. Protection against the excessive cost of compliance is provided by section 12 FOISA. But it has not been suggested that the process of barnardisation which the Commissioner said should be adopted in this case would be excessively costly. In my opinion [NAME] in that form would contain [NAME] that was "held" by the Agency at the time of the request and, unless it was "personal [NAME]" and its disclosure would contravene any of the [NAME] protection principles, it would have to be released in response to it.”

(Section 11(4) of FOISA equates to section 11(4) of FOIA and section 11(2)(b) of FOISA to section 11(1)(c) of FOIA.)

62. I make the following observations at this stage about the remarks of [NAME] in paragraph [16] of [NAME].

(i) first, as I have already said, they are at most about whether the [NAME] in barnardised form was in fact “held” by the [NAME]. The heading Lord [NAME] used for paragraphs [14]-[16] of his speech in [NAME] was “Was the [NAME] to be barnardised [NAME] held by the [[NAME]]?”;

20 (ii) [NAME], they are not about the FOISA equivalent to section 11(1) of FOIA; (iii) third, they only refer to section 11 of FOISA as providing an “indication” of the latitude that should be taken to whether [NAME] is held by a [NAME] authority; and, (iv) fourth, they are not a legal binding statement as to when section 11 of FOISA (or FOIA) applies or what test section 11(1) of FOIA contains.

It is worth nothing as well that Lord [NAME] at paragraph [73] of [NAME] located the obligation on the [NAME] authority to consider giving the [NAME] in [NAME] form (so as to avoid breaching [NAME] protection principles by giving the [NAME] in the requested form) in what would be section 1(1) of FOIA.

63. The [NAME] case is [NAME] v [NAME] [2014] EWCA Civ 1086; [2015] 1 WLR 210. The issue in [NAME] did concern section 11(1) of FOIA. It was not, however, about whether section 11(1)’s “so far as reasonably practicable” wording provides a sliding scale test or an all or nothing test.

64. The [NAME] authority in [NAME] held the [NAME] requested and communicated it to Mr [NAME]. The key issue was whether by providing the [NAME] to Mr [NAME] in electronic form but not in a particular software format suitable to Mr [NAME] needs, the [NAME] authority met section 11(1)(a) of FOIA. In allowing Mr [NAME] appeal the Court of Appeal held: (a) that section 11(1)(a)’s wording ‘provision of a copy of the [NAME] in a permanent form or [NAME] form acceptable to the applicant” entitled the applicant “to request more than simply “permanent” or non- permanent” (paragraph [36]); and (b) the applicant’s right (so far as reasonably practicable) in section 11(1) to choose to have [NAME] provided to him in electronic form extended “to a right to choose the software format in which it is embodied” (para. [37]).

65. Three passages from paragraphs 31, 39 and 40 of [NAME] were referred to by the parties and I set these out below.

“[31]….Although the argument before us, as below, appeared to proceed on the assumption that the purpose of section 11 was to give applicants a choice of the "form" in which [NAME] is supplied, the only question being what that meant, it does not seem to me as straightforward as that. The [NAME]-matter of section 11 is not the form in which the requested [NAME] is supplied but the "means" by which it is communicated…..”

[39]…. Citizens are given the right of access to [NAME] [NAME] at least in part so that they can make use of such [NAME]. A construction of the Act which makes it easier for them to do so effectively is to be preferred.

[40]…..it is hard to see any policy objection to a construction which enables an applicant to specify a preferred software……If an authority is asked to provide [NAME] in a software format in which it is not already held (or into which it cannot readily be converted) it would be entitled to seek to rely on the reasonable practicability qualification; I doubt if it was part of the purpose of the Act to oblige authorities to input [NAME] into a spreadsheet when it does not

21 already exist in that form (though that was not of course the case here). The authority could likewise invoke the reasonable practicability qualification if the provision of [NAME] in the way sought would be inconsistent with the licence governing its use of particular software.”

66. The third case is the decision of the Court of Appeal in Independent Parliamentary Standards Authority v [NAME] and Leapman [2015] EWCA Civ 388; [2015] 1 WLR 2879 (“[NAME]”). The [NAME] request in this case was for the original invoices submitted by three Members of [NAME] for expenses claims they had made. What was supplied to the [NAME] had certain parts of what was in and on the invoices redacted. The redactions covered, inter alia, logos and letterheads, handwriting and manuscript comments, and the layout and style of the invoices. The [NAME] decided that all the redactions which I have just identified had also to be disclosed to the [NAME] as [NAME] held by [NAME]. [NAME]’s challenges to the [NAME]’s decision were dismissed by the First-tier Tribunal, the Upper Tribunal and the Court of Appeal.

67. The following passages from [NAME] were relied on before me.

“[33] As already noted, the entitlement under section 1(1) relates to recorded [NAME] but "[NAME]" is not further defined. It is an ordinary English word and there is nothing to suggest that it is being used in an unusual or narrow sense. In Common Services Agency v [NAME] [NAME] [2008] UKHL, [2008] 1 WLR 1550, a case under the materially identical Freedom of [NAME] (Scotland) Act 2002, Lord [NAME] said that "[t]here is much force in Lord [NAME] observation in the Inner House … that, as the whole purpose of the 2002 Act is the release of [NAME], it should be construed in as liberal a manner as possible" (paragraph 4). He went on to state that that proposition must not be applied too widely, observing that "while the entitlement to [NAME] is expressed initially in the broadest terms that are imaginable, it is qualified in respects that are equally significant and to which appropriate weight must also be given. The scope and nature of the various exemptions plays a key role within the Act's complex analytical framework". As it seems to me, the very fact that detailed exemptions are provided within the complex analytical framework of FOIA shows that "[NAME]" itself does not need to be narrowly construed: on the contrary, there is no reason why effect should not be given in this respect to the purpose of the statute by construing it in as liberal a manner as possible. It is, moreover, common ground that "[NAME]" is not limited to words and figures but extends to visual and aural [NAME] (photographs, drawings, CCTV or audio footage, etc).

[34] A central position in the argument before us was occupied by the opinion of the court, given by Lord [NAME], in Glasgow City Council v Dundee City Council [2009] CSIH 73. This was a decision of the Inner House of the Court of Session on two appeals under the Freedom of [NAME] (Scotland) Act 2002. One of those appeals concerned emails from a firm of solicitors stating that, on behalf of a client, the firm "would like to (and hereby does) make an [NAME] that we be provided with a copy of [a specified document or documents]" held by Glasgow City Council. The original requests related to a number of statutory registers, notices and orders, but the matter came down to 28 categories of notice. The Council's response to the requests was to the effect that all the [NAME] requested was available for purchase in the form of

22 Property Enquiry Certificates ("PECs") under the Council's publication scheme. The Council was evidently concerned that the request under the 2002 Act was an attempt to circumvent the charging regime it had established by way of PECs. The Commissioner decided, however, that the Council had not dealt with the requests in accordance with Part I of the Act.

[35] In considering the appeal against that decision, Lord [NAME] stated at paragraph 42 of the opinion that the first question was whether the emails were requests for [NAME] within the meaning of the Act. He continued:

"43. As we have noted, section 1(1) of the Act creates an entitlement to be given [NAME]; and section 73 defines '[NAME]', for the purposes of section 1, as meaning '[NAME] recorded in any form'. That terminology, which reflects that of the Freedom of [NAME] 2000, was carefully chosen: most earlier freedom of [NAME] legislation in other jurisdictions confers a right of access to documents (as in the Commonwealth of Australia Freedom of [NAME] 1982) or to records (as in the Canadian Access to [NAME] 1982, the Irish Freedom of [NAME] 1997 and the United States Freedom of [NAME] 1966); and the New Zealand Official [NAME] 1982, which requires 'official [NAME]' to be made available on request, is not restricted to recorded [NAME]. The word '[NAME]' is itself of wide range, as has been emphasised by courts construing the New Zealand and Australian legislation (as, for example, in Commissioner of Police v Ombudsman [1988] 1 NZLR 385, R v Harvey [1991] 1 NZLR 242 and [NAME] v Minister for Immigration and Multicultural Affairs [2001] FCA 1444). The definition in section 73 is therefore wide in scope, but it is not unlimited. In the first place, it does not include unrecorded [NAME]. Secondly, it is implicit in the definition that a distinction is drawn between the record itself and the [NAME] which is recorded in it. That is consistent with section 11(2)(c), which implies that '[NAME]' is capable of being contained in a record. The distinction is also reflected in section 65(1) of the Act, which, as we have explained, makes it an offence to alter a record with the intention of preventing the disclosure of [NAME]. What a person can request, in terms of section 1(1), is the [NAME] which has been recorded, rather than the record itself. The right conferred by section 1, where it applies, is therefore to be given the [NAME], rather than a particular record (or a copy of the record) that contains it. Put shortly, the Act provides a right of access to [NAME], not documentation."

[36] The correctness of that statement of principle is common ground before us, and it is acknowledged in particular that there is a conceptual distinction between the record and the [NAME] contained in it and that the statutory entitlement relates specifically to the latter. The point is made by Mr [NAME] on behalf of the Commissioner, however, that there will be cases (of which the present case is said to be one) where it is necessary in practice to disclose the record itself, whether by providing a copy of it or by providing an opportunity to inspect it, in order to communicate the entirety of the [NAME] contained in it. The fact that disclosure of the record may be necessary in order to give effect to the entitlement to the [NAME] does not undermine the conceptual distinction between the record and the [NAME] and does not confuse the statutory entitlement to recorded [NAME] with an entitlement to the record. This point did not arise for consideration in the Glasgow City Council case, since

23 there was not alleged to be any shortfall in that case between the [NAME] provided and the [NAME] contained in the record. As appears from paragraphs 50-51 of the opinion of the court, in relation to the question whether the [NAME] fell within a statutory exemption as being obtainable from PECs under the Council's publication scheme, the Commissioner had proceeded on the basis that the [NAME] contained in the PECs was not materially different from the [NAME] contained in the copy notices requested, and the court declined to hear argument to the effect that the [NAME] contained in the notices was not in fact derivable in its entirety from the PECs and that the Commissioner's decision, properly construed, proceeded on that basis.

Issue (1): was there a failure to communicate recorded [NAME] to which Mr [NAME] was entitled?

[46] [[NAME]] advanced an argument to the effect that the Commissioner's approach, as upheld by the tribunals, would leave section 11(2) and (4) of FOIA with no work to do. Those provisions are concerned with the means by which [NAME] is communicated. I will look at them in detail when considering the next issue. It suffices to say here that I do not accept that the Commissioner's approach affects the operation of section 11 or deprives it of practical utility. There may be cases, as here, where the available means of communication are limited by the need to disclose a document itself in order to communicate all the [NAME] recorded in it. Even then there may be a choice in practice between providing the applicant with a copy of the document and providing him with an opportunity to inspect the original document. But even if in the particular circumstances there is only one available means of communication, the result is consistent with the scheme of the legislation and cannot be said to undermine the legislative purpose.

Issue (2): were the means of communication adopted by [NAME] sufficient to comply with Mr [NAME] request?

[49] The finding that [NAME] failed to communicate recorded [NAME] to which Mr [NAME] was entitled might be thought to be dispositive of the case against it. [[NAME]] submitted, however, that [NAME] had communicated [NAME] by means that satisfied the requirements of section 11 and had thereby fulfilled its duty in respect of Mr [NAME] request even if there was a shortfall between the [NAME] communicated and the [NAME] to which Mr [NAME] was entitled under section 1(1). This brings in an issue that I have touched on already but that needs now to be considered in greater detail. [50] [[NAME]’s] argument appeared to proceed along the following lines:

(1) The manner in which a section 1(1)(b) entitlement is satisfied is prescribed by section 11: section 1(1)(b) states the right, whilst section 11 states the correlative obligation on the [NAME] authority.

(2) The correct meaning of a request for [NAME] is a question of law. On the proper interpretation of his request, Mr [NAME] expressed a preference for an opportunity to inspect the original documents. If the First-tier Tribunal had approached the matter correctly, it ought so to have found.

(3) [NAME] was entitled to determine that it was not reasonably practicable to give effect to that preference, having regard to "all the circumstances,

24 including the cost of doing so" (see the tailpiece to section 11(1) and the language of section 11(2)). The First-tier Tribunal erred in interpreting "all the circumstances" in a limited way, as referring only to the circumstances of the particular request for [NAME].

(4) If it was not reasonably practicable to give effect to Mr [NAME] preference, it was open to [NAME], under the terms of section 11(4), to comply with the request by any means which were reasonable in the circumstances, and the means adopted by [NAME] satisfied that provision.

(5) If, contrary to (2) above, Mr [NAME] expressed no preference as to the means of communication, then section 11(4) applied directly, and again the means of communication adopted by [NAME] satisfied the provision.

(6) Accordingly, [NAME] satisfied the requirements of section 11, and by so doing it fulfilled its duty in respect of Mr [NAME] request even if the means of communication adopted resulted in a diminution or shortfall in the [NAME] communicated, as compared with the [NAME] to which Mr [NAME] was entitled under section 1(1).

[51] In my judgment, the argument breaks down at the first step and produces an untenable conclusion. I do not accept that section 11 has the role ascribed to it by [[NAME]]. The duty correlative to the section 1(1) entitlement is inherent in section 1(1) itself. Just as the person making a request for [NAME] has a two-fold entitlement under the subsection, namely (a) to be informed in writing by the [NAME] authority whether it holds [NAME] of the description specified in the request, and (b) if that is the case, to have that [NAME] communicated to him; so the [NAME] authority to which the request is made has a correlative two-fold duty, (a) to inform the person in writing whether it holds [NAME] of the description specified in the request, and (b) if that is the case, to communicate that [NAME] to him. That the subsection imposes a duty on the [NAME] authority is clear from related provisions of the statute. For example, section 1(3) provides that where a [NAME] authority reasonably requires further [NAME] in order to identify and locate the [NAME] requested, and has informed the applicant of that requirement, "the authority is not obliged to comply with subsection (1) unless it is supplied with that further [NAME]". By section 1(5), "a [NAME] authority is to be taken to have complied with subsection (1)(a) in relation to any [NAME] if it has communicated the [NAME] to the applicant in accordance with subsection (1)(b)". By section 1(6), "in this Act, the duty of a [NAME] authority to comply with subsection (1)(a) is referred to as 'the duty to confirm or deny'". Section 50(4), in the context of a complaint to the Commissioner, provides that where the Commissioner decides that a [NAME] authority "has failed to communicate [NAME], or to provide confirmation or denial, in a case where it is required to do so by section 1(1)", the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken. The same subsection draws an express distinction between (a) a failure to communicate [NAME] where required by section 1(1), and (b) a failure to comply with the requirements of section 11.

[52] Thus, there can in my view be no doubt that section 1(1) imposes a requirement or duty, with which a [NAME] authority is obliged to comply, to communicate the [NAME] to which the person requesting it is entitled, and

25 that such duty is independent of section 11. The entitlement and the correlative duty are qualified by section 1(2), which provides that section 1(1) has effect [NAME] to the other provisions of section 1 and to the provisions of sections 2, 9, 12 and 14. I have already mentioned some of the other provisions of section 1. Section 2 deals with the effect of the exemptions in Part II of the Act. Section 9 concerns fees. Section 12 provides for an exemption where the cost of compliance exceeds "the appropriate limit" as prescribed by regulations. Section 14 provides for an exemption in respect of vexatious or repeated requests. None of those qualifications brings in section 11.

[53] The function of section 11(1) is separate. First, the provision imposes an additional duty on the [NAME] authority where, on making the request for [NAME], the applicant expresses a preference for communication by any one or more of the means specified. The [NAME] authority is required, so far as reasonably practicable, to give effect to that preference. Where it is not reasonably practicable to give effect to the preference, or where no preference has been expressed, the [NAME] authority may, by section 11(4), comply with the request by communicating [NAME] by any means which are reasonable in the circumstances. That provision gives the [NAME] authority a discretion as to the means by which the [NAME] required by section 1(1) is communicated, but it does not empower the [NAME] authority to communicate less [NAME] than section 1(1) requires. It does not qualify the entitlement or the duty under section 1(1). If the chosen means of communication results in a shortfall as between the [NAME] communicated and the [NAME] to which the person is entitled under section 1(1), the [NAME] authority is in breach of its duty under section 1(1).

[54] It follows that the Commissioner was correct to state at paragraph 16 of the decision notice, and the First-tier Tribunal was correct to hold at paragraph 25 of its determination, that section 11 cannot operate to limit the [NAME] that a [NAME] authority is obliged to disclose….”

Analysis

The order of decision-making under FOIA

68. Although not a ground of appeal before me, the resolution of this appeal and the arguments on it has not been assisted by the back-to-front approach to the order of decision making adopted by the [NAME] in his Decision Notice, an approach which then continued on the appeal to the FTT.

69. From a purely forensic point of view, one answer to Mr [APPELLANT]’s section 50 complaint was for the [NAME] to focus on section 11 of FOIA in relation to the transcripts. The difficult with this approach, however, was that it put in reverse order the decision making steps required by the FOIA statutory scheme, a difficulty which has been exemplified by the arguments on this appeal. It is clear in my judgement that the section 11 consideration of the means by which the requested [NAME] was to be communicated to Mr [APPELLANT] arose only when (and if) the obligation to communicate the requested [NAME] under section 1 of FOIA applied. On the arguments before the [NAME] on Mr [APPELLANT]’s section 50 complaint, that section 11 stage had not been reached both in relation to the audio calls and transcripts made of those calls.

26 70. Even assuming, as appears not to have been contested by the [NAME] before the FTT, that the [NAME] also “held” the [NAME] requested in the form of the creation of transcripts of the audio calls, a number of stages needed to be gone through before the [NAME] was obliged under section 1(1)(b) of FOIA to communicate the [NAME] to Mr [APPELLANT], and thus before section 11 had any application. Here, those stages involved, on the case the [NAME] made to the [NAME], first that the transcripts were exempt under section 40(2) of FOIA, [NAME] that sections 12 or 14 of FOIA applied to exclude the [NAME] from the section 1(1) obligation, and third that sections 31 or 38 of FOIA applied to the transcripts. None of these stages were considered or determined. I struggle to identify a proper basis for not considering any of these exemptions or exclusions as it was only if none of them applied that the [NAME] ought to have come under the section 1(1)(b) obligation to communicate the [NAME] to Mr [APPELLANT], and thus for section 11 to come into play.

71. It is only fair to [NAME] in this regard to record that it made this very point in its initial response to the [NAME]’s investigation of Mr [APPELLANT]’s section 50 complaint, when it said:

“The [NAME] notes the [NAME]’s own guidance highlights that “if you are not providing the [NAME] because of an exemption, section 11 is not relevant.” The [NAME] consider that section 11 is engaged at the point the [NAME] authority has decided in principle that [NAME] must be disclosed and informs the question of “how” it should be provided. For the reasons explained above, the [NAME] consider that the [NAME] contained in the distress calls should not be disclosed as it is exempt under section 40 and therefore section 11 does not arise.”

72. The [NAME] still contend that the transcripts of the audio calls would themselves contain personal [NAME] and so would be exempt under section 40(2) of FOIA. Moreover, as I understood the [NAME]’s and the [NAME]’s arguments on this point, they were that if the [NAME] in the audio calls is exempt under section 40(2) of FOIA (and this part of the [NAME]’s Decision Notice was not appealed by any party to the FTT), that [NAME] remained exempt when put in the form of a transcript. Both respondents before me argued in addition that section 11 could not be used to change this consequence as, per paragraph [53] of [NAME], section 11 has a separate function from section 1 of FOIA and does not qualify the entitlement or duty under section 1(1).

73. I accept and agree with these submissions as a matter of principle. However, their purchase on the facts of this case would seem to be limited because there has been no adjudication by either the [NAME] or the FTT on whether if transcripts of the calls were made, those transcripts would be exempt from disclosure under section 40 of FOIA. And contrary to the argument I understood the [NAME] to make at the oral hearing before me, nothing in paragraphs 6, 28 or 59 of the [NAME]’s Decision Notice makes a finding, let alone decides, that the transcripts of the audio calls would contain personal [NAME] such that the exemption in section 40(2) of FOIA was made out.

27 74. The argument made here by both respondents was that even if the FTT had erred in law in its approach to section 11 of FOIA, that error of law was not a material error because the [NAME] whether in the form of transcripts or audio records was exempt under section 40(2) of FOIA. For the reasons I have just given, I do not accept this argument.

Sections 1 and 11, “held” and [NAME]

75. The above issues about the order of decision making under FOIA touch on [NAME] area of debate on this appeal. This is the role, if any, section 11 of FOIA has in determining whether [NAME] is “held” by a [NAME] authority under section 11 of FOIA.

76. Mr [APPELLANT] argued, relying on paragraph [35]-[36] of [NAME] and paragraph of [43] of Glasgow City Council v [NAME] [NAME] [2009] CSIH 73; 2010 SLT 9, that a distinction is drawn under section 1 of FOIA between the [NAME] which has been recorded and the record in which that [NAME] appears, with it being the former to which the [NAME] is entitled. An immediate difficulty for Mr [APPELLANT]’s argument, as I see it, is that if the [NAME] requested is that which is held in the audio record of the distress calls (i.e., the voices and the words used in those calls), that [NAME] has been held to be exempt under section 40(2) of FOIA and Mr [APPELLANT] has not challenged that aspect of the [NAME]’s Decision Notice. If this is Mr [APPELLANT]’s case then the appeal would seem to fail at this point because, notwithstanding the points I have made above about the section 40’s application to the transcripts not having been adjudicated upon, Mr [APPELLANT] has not challenged that the [NAME] is exempt.

77. As I understood it, Mr [APPELLANT]’s answer to this was to rely on paragraph [16] of the House of Lord’s decision in [NAME] as being about section 11 of FOIA and that it had the legal effect of tying section 11 to section 1 of FOIA. On this reading of [NAME], it was argued for Mr [APPELLANT] that (i) the [NAME], per section 1 of FOIA, “held” the [NAME] he requested as audio files, and (ii) per section 1 and section 11 of FOIA read together, in so far as reasonably practicable it also held that [NAME] in the form of transcripts. Whether the [NAME] was exempt, say under section 40(2) of FOIA, would depend upon looking at the form in which the [NAME] ended up being “held”. Unlike the audio calls, the transcripts of the calls could remove certain personally identifiable [NAME] such as the tone of the voices used in the calls and thus make it less likely that the [NAME] in the transcripts would be exempt under section 40(2) of FOIA.

78. I do not accept that sections 1 and 11 of FOIA are tied together in this way. This is for three key reasons. First, for the reasons I have given in paragraph 62 above, the decision in [NAME] does not have this legal effect. [NAME], the argument that sections 1 and 11 of FOIA are tied together in way for which Mr [APPELLANT] contends is contrary to paragraphs [51]-[54] of [NAME]. [NAME] is binding authority that the function of section 11 is separate from section 1 of FOIA and does not qualify the entitlement or the duty under section 1(1) of FOIA: per para. [53] of [NAME]. And even within section 1(1) itself, the duty to communicate [NAME] in

28 section 1(1)(b) of FOIA is only in respect of the [NAME] which the [NAME] is entitled to under FOIA: [NAME] at [52]. Third, I accept the respondents’ argument that, following [NAME] and given the structure of FOIA, section 11 cannot confer a greater entitlement to [NAME] than applies under section 1 of FOIA. That would be to allow the section 11 tail, the means by which the section 1(1)(b) [NAME] is to be communicated, to wag the dog of whether under section 1(1) the [NAME] has an entitlement to the [NAME] requested.

Section 11(1) – ‘all or nothing or ‘sliding scale’?

79. Having cleared the above points out of the way, I turn to address the main ground of appeal. In my judgement, in agreement with the [NAME], when read properly in context the test in section 11(1) of FOIA of giving effect to a [NAME]’s preference for communication of the [NAME] “so far as reasonably practicable” is an “all or nothing” test.

80. This conclusion is dispositive of this appeal and all the grounds of appeal. I say this because the appellant’s appeal before the FTT turned on the section 11 test being a sliding scale one, such that some transcripts of the audio calls could be disclosed to him. In addition, the reasons challenge to the FTT’s decision in paragraph eight of the grant of permission to appeal was subsidiary to this question of statutory interpretation and was only about what the FTT considered the correct legal test was. If, as in my judgement is the case, section 11(1) of FOIA contains an ‘all or nothing’ test, I can identify no material error of law in the FTT’s dismissal of Mr [APPELLANT]’s appeal, notwithstanding the lack of clarity in the FTT’s reasoning. And the [NAME] ground of appeal only arises if the correct legal test the FTT had to apply under section 11 was a sliding scale one.

81. The issue of the meaning of “so far as reasonably practicable” in section 11(1) of FOIA is an issue of statutory construction. This requires the Upper Tribunal to construe the words of section 11(1) in their statutory context: R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255 at paras; [29]- 31]. The parties before me, with different emphases and to different ends, referred me to the [NAME]’s guidance on “Means of communicating [NAME] (section 11)”. That, however, is only the [NAME]’s, and thus one party’s, view about the meaning and scope of section 11. As such, I am not sure it has even a secondary role in deciding the intended scope of a legal provision: see para. [30] of R(O). I have therefore concentrated on the statutory wording within its context in FOIA.

82. I accept that the phrase “so far as reasonably practicable” may in some contexts cover a sliding scale test, though clearer language could have been used if that was what was intended. For example, section 11(1) does not say “provide the applicant with as much of the requested [NAME] in accordance with their preference so far as reasonably practicable”. Mr [APPELLANT]’s reading of the phrase “so far as reasonably practicable” taken in isolation is, therefore, a tenable one. The key consideration, however, is to construe the relevant phrase within the context of FOIA as a whole. It is only when that statutory context is understood that that the otherwise abstract concept of FOIA providing a

29 constitutional right to [NAME] and being liberally construed may have concrete meaning. In any event, section 11 is in my view one stage removed from the (constitutional) right to [NAME] found in section 1 of FOIA. Section 11 is not about the substance of the right or even the right to be communicated with the requested [NAME] (see [NAME] at [51]-[52]), but simply the means by which the [NAME] is to be communicated. And, I would add, the “apparent philosophy” of FOIA vouched for in paragraph 39 of [NAME] was limited to making it easier to use the [NAME] to which the [NAME] was entitled, which has no real application to this case.

83. The touchstone for determining the meaning of the phrase “so far as reasonably practicable” within its statutory context is, in my judgement, to identify its object. In FOIA that object is the request for [NAME] in respect of which the [NAME] has expressed a preference as to the means of its communication. Read in terms of section 11(1)(a), (b) or (c) of FOIA and section 1 of FOIA, the object of the request is the [NAME] which has been requested. It is, per section 1(1)(a) and (b) of FOIA, the [NAME] of the description specified in the request which has to be communicated, and, per section 1(4) of FOIA, “the [NAME] in question held at the time he request is received”. In Mr [APPELLANT]’s case the [NAME] requested was “all calls between [NAME] at sea in the [NAME] and [NAME] between 00:01am on 15 November 2021 and 23:59pm on 22 November 2021”. It was that [NAME] which by section 1(1)(b) of FOIA the [NAME] was obliged to communicate to Mr [APPELLANT] (assuming for present purposes no other arguments arose in respect of it under FOIA), and not just a part or subset of that [NAME].

84. The [NAME] referred in argument to “the [NAME]” 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 [NAME] 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 [NAME], if the section 12 estimate is based on the cost of providing all the [NAME] 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 [NAME] up to the “appropriate limit”, section 12 would have no useful application as it would always oblige a [NAME] authority to comply with the request in respect of as much of the [NAME] 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 [NAME] plainly intended that section 12 would apply so as to allow a [NAME] authority to refuse the request if complying with it exceeded the appropriate limit. A sliding scale (that is, as much of the requested [NAME] 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 [NAME] of the description specified in the request.

85. Where the amount of the [NAME] requested breaches, or is likely to breach, the costs cap in section 12, the advice and assistance duty in section 16 of FOIA might apply to require the [NAME] authority to advise the [NAME] to make a less

30 wide-ranging request. However, the starting point for that advice would be grounded in section 1 of FOIA’s statutory focus on the [NAME] of the description specified in the request. That section 1 [NAME] is all the [NAME] held by the [NAME] authority which falls within the request, and the rest of FOIA’s consideration of the request is based premise.

86. A further example of the [NAME] requested being a unitary concept is the absolute exemption in section 2(2)(a) of FOIA. The absolute exemption referred to in section 2(2)(a) applies if or to the extent that the [NAME] is [NAME] to an absolute exemption.

87. The [NAME] also relied on case law as supporting the above analysis. He argued that paragraphs 52 and 53 of [NAME] neither mentioned a sliding scale test nor did they consider the partial meeting of the [NAME]’s preferred means of communication. As an observation this is true, but I place little weight on this as the Court of Appeal in [NAME] was not faced with the argument I am addressing. The [NAME] also argued that paragraph 40 of [NAME] and its language of “into which it cannot readily be converted” supported the ‘all or nothing’ approach. Again, I am not sure I can attach any real weight to paragraph 40 of [NAME]. The question arguably might remain what was the “it” that it was not reasonably practicable to convert into [NAME] software format: all the [NAME] requested or just part of it. In the context of the [NAME] case it was all the [NAME] requested, but the Court of Appeal was not, at least directly, addressing the argument with which I am concerned.

88. However, on the statutory language read properly in context, and for the reasons given above, I am satisfied that the phrase “so far as reasonably practicable” in section 11(1) imposes an ‘all or nothing’ test. That meant a test that asked the extent (if at all) that it was reasonably practicable to provide Mr [APPELLANT] with all of the [NAME] he had requested as transcripts. On the evidence, the only answer to that was ‘No’. That is the approach the [NAME] took in paragraphs 2 and 25-33 of the Decision Notice, and the FTT accordingly made no material error of law in dismissing the appeal against that Decision Notice.

Conclusion

89. For the reasons given above, this appeal is dismissed.

Stewart Wright

Judge of the Upper Tribunal

Authorised by the Judge for issue on 25th March 2025