Upper Tribunal (Administrative Appeals Chamber)

DECISION BY THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal.

 

The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 29 May 2014, BAILII: [2014] UKFTT 2013_0286 (GRC), in relation to the Second Respondent’s appeal against Decision Notice FS50503796, involves an error on a point of law.  The appeal is therefore allowed and the Tribunal’s decision set aside. The Upper Tribunal re-makes the Tribunal’s decision as follows:

 

The First-tier Tribunal upholds the Information Commissioner’s decision notice dated 2 December 2013 (FS50503796) and dismisses the requestor’s appeal.

 

This decision is given under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS

 

An outline of the background to this appeal

1. Mr Mackenzie made a three-part request under the Freedom of Information Act 2000 (FOIA) to the Metropolitan Police for data about joint agency operations which included surveillance. The Metropolitan Police took the view that responding to the request would exceed the section 12 cost limit. Mr Mackenzie complained to the Information Commissioner, who issued a decision notice (FS50503796) concluding that the public authority had correctly applied section 12 and also was not in breach of section 16 (the duty to advise and assist).

 

2. Mr Mackenzie then appealed to the First-tier Tribunal (“the Tribunal”), which concluded that the Metropolitan Police was in breach of section 16. In those circumstances the Tribunal did not find it necessary to decide the section 12 point (EA/2013/0286), BAILII: [2014] UKFTT 2013_0286 (GRC). The Metropolitan Police (sometimes referred to as the MPS) now appeals to the Upper Tribunal, with the Tribunal’s permission.

 

A summary of the Upper Tribunal’s decision

3. I conclude, for the reasons that follow, that the Tribunal’s decision involves an error of law. I therefore allow the appeal by the Metropolitan Police. I set aside the Tribunal’s decision. I see no advantage in sending the matter back for re-hearing by a fresh Tribunal. I accordingly re-make the decision on the appeal before the Tribunal. My decision is that Mr Mackenzie’s appeal against the Information Commissioner’s decision notice should be dismissed.

 

The request to the Metropolitan Police

4. Mr Mackenzie’s original request, made on 22 December 2012, was as follows (the numbers in parentheses have been added for ease of reference):

 

“(1) Please could you tell me if the Metropolitan Police is involved in any joint agency operations which include surveillance?

 

(2) If so, could you please specify how many operations and how many staff are committed to these at date of writing?

 

(3) Could you also please specify the total number of people who are the target of these operations?”

 

5. The request was subsequently the subject of minor clarification but not the subject of any significant amendment. The Metropolitan Police relied on section 12 as an exception to disclosure (initially it relied on section 12(1), but later shifting its ground to section 12(2)). The public authority, referring to its duty to advise and assist (under section 16), also informed Mr Mackenzie that it did not consider there was “any practical way” in which the request could be modified so as to bring it within the cost limit. The Information Commissioner in his decision notice concluded that the Metropolitan Police had correctly applied both sections 12 and 16.

 

6. Mr Mackenzie appealed to the Tribunal on two grounds. First, he argued that the Commissioner was wrong to conclude that compliance with his request would exceed the cost limit; on the contrary, it would be both simpler and less time consuming to respond to his request than suggested by the Metropolitan Police. Second, Mr Mackenzie contended that the public authority should have provided him with advice and assistance to allow him to refine his request to bring it within the cost limit.

 

The First-tier Tribunal’s hearing and decision

7. The Tribunal, with the consent of all the parties, considered the appeal on the papers. It had before it detailed submissions in writing from each of the parties. It also had an open witness statement from Mr Nigel Shankster, a Senior Information Manager for the public authority, setting out the methodology which had underpinned its response based on section 12.

 

8. The Tribunal did not find it necessary to reach a conclusion on the section 12 issue (reasons for decision at [33]), confining itself to the observation that the Respondents “have made a strong case that the cost limit would be exceeded but also [we] consider they have taken a view of the request which makes it appear more complicated than perhaps it really is” (at [21]).

 

9. Instead, the Tribunal focussed on the second of Mr Mackenzie’s grounds of appeal, i.e. that relating to section 16. The Tribunal noted the Metropolitan Police’s initial refusal notice, which was unable to advise “any practical way” in which the request could be modified so as to bring it within the section 12 cost limit (at [23]). However, the Tribunal then highlighted an observation made by Mr Shankster in a letter dated 13 November 2013 in the course of the Commissioner’s investigation (at [24]):

 

“I believe that the requestor will need to assess the way in which the questions are phrased. By withdrawing parts two and three of the request, as these are very likely to be of an indeterminate nature, and by being more specific about the area of business, may indeed enable searches to be undertaken and information retrieved. However, the MPS needs to stress that even if such information were obtained exemptions may well apply in regard to disclosure.”

 

10.  The Tribunal considered (at [25]) that this was exactly the sort of advice and guidance contemplated by section 16, and yet the Commissioner had overlooked this exchange. The core of the Tribunal’s reasoning in allowing Mr Mackenzie’s appeal was as follows:

 

“[29] The MPS in its response to the appeal argues that if Mr Mackenzie was to take up Mr Shankster’s suggestion it would change the character of the request entirely and fall outside the MPS’s section 16 duty. It also suggests that it could lead to multiple requests in respect of different units which may well have led to aggregation or the application of section 14 (vexatious request).

 

[30] We have difficulty in accepting these arguments. From the evidence before us we consider it is more probable than not that the first part of the request could be answered within the section 12 cost limit and that the MPS could have advised Mr Mackenzie of this when first responding to his request.

 

Our Conclusion

[31] We find that the MPS did not comply with its obligation under section 16 FOIA. We find that the MPS could have provided helpful advice to enable Mr Mackenzie to narrow his request so that it could be within the cost limit as was suggested in their letter of 13 November 2013 to the Commissioner. We cannot see how this would change the character of the request as suggested by the MPS particularly as the MPS is under an obligation to provide advice and guidance on how to narrow the request itself. Again we do not understand how it can be suggested that it would lead to a vexatious request particularly with its advice and guidance.”

 

11.  Having found that the Metropolitan Police was in breach of its section 16 duty, the Tribunal accordingly allowed Mr Mackenzie’s appeal and substituted a new decision notice requiring the public authority to comply with that obligation. That part of the Tribunal’s decision has been suspended pending the outcome of the present further appeal.

 

The parties’ submissions to the Upper Tribunal

12.  The Metropolitan Police have advanced three grounds of appeal. First, it argues that the Tribunal erred in applying the wrong and too high a standard in respect of the section 16 duty. Second, it submits that the Tribunal’s conclusion that the public authority could have advised Mr Mackenzie to narrow his request to part (1) alone was an unsustainable finding. Third, it contends that the Tribunal’s conclusion that part (1) of the request could have been answered within the section 12 cost limit is inconsistent with other parts of the decision, unreasoned and unsustainable.

 

13.  In a short response, the Information Commissioner (the First Respondent) supports the Metropolitan Police’s grounds of appeal. Mr Mackenzie (the Second Respondent) has declined the opportunity to make any submissions before the Upper Tribunal, and I proceed on the assumption that he stands by his submissions to the Tribunal below and supports its conclusion on section 16.

 

14.  As at first instance, no party has sought an oral hearing of this appeal before the Upper Tribunal. Given the extensive treatment of the issues in the written submissions before both tribunals, I take the view that it is fair and just to proceed to a determination on the papers (Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), rules 2 and 34).

 

The Upper Tribunal’s analysis

Ground (1): the proper standard to be applied in respect of the section 16 duty

15.  The Metropolitan Police’s first ground of appeal is that the Tribunal erred in law by applying too high a standard in respect of the duty under section 16 of FOIA, which provides as follows:

 

“16 Duty to provide advice and assistance

 

(1) It shall be the duty of a public 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 information to it.

(2) Any public 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.  The Tribunal referred to both section 16 and the guidance in the Secretary of State’s Code of Practice (as issued under section 45 of FOIA), summing up the position as follows:

 

“[18] Where a public authority is relying on section 12 FOIA to refuse a request, in order to comply with section 16 it should therefore either indicate if it is not able to provide any information at all within the appropriate limit; or provide an indication of what information could be provided within the appropriate limit and provide advice and assistance to enable the requestor to make a refined request.”

 

17.  The Metropolitan Police’s contention is that the standard imposed by section 16 is set at a relatively low level. Reliance is placed on the first-instance decision in Beckles v Information Commissioner (EA/2011/0073 & 0074), BAILII: [2011] UKFTT 2011_0073 (GRC), where it was said (at [24]):

 

“S.16 requires a public authority, whether before or after the request is made, to suggest obvious alternative formulations of the request which will enable it to supply the core of the information sought within the cost limits. It is not required to exercise its imagination to proffer other possible solutions to the problem.”

 

18.  The public authority observes in its notice of appeal that there is as yet no Upper Tribunal guidance on the meaning and extent of section 16 of FOIA. It further argues that such appellate guidance would be of assistance both to the parties in this appeal and to the Tribunal more generally.

 

19.  I decline that invitation and instead proceed for the present on the basis that the explanation provided by the First-tier Tribunal in Beckles represents an accurate statement of the law. I do that for three reasons. First, I can dispose of this appeal on grounds 2 and 3 as advanced by the public authority and so do not need to resolve this first ground of appeal definitively. Second, I have not had the benefit of detailed submissions on the issue in a case where the section 16 duty is especially in point. Third, the application of section 16 is very much context- and fact-specific, as demonstrated recently in the Court of Appeal’s judgment in Innes v information Commissioner and Another [2014] EWCA Civ 1086 (at [52]-[63] per Underhill L.J.).

 

Ground (2): part (1) of the request and the section 16 duty

20.  The Tribunal, it will be recalled, took the view that the suggestion made by Mr Shankster in the course of the Commissioner’s investigation (namely that parts (2) and (3) of the request be dropped) was precisely the type of advice and assistance that should have been provided by the public authority under section 16. It further found that the failure to offer that suggestion to Mr Mackenzie at the outset amounted to a breach of the section 16 duty, as it would not have changed the character of his request.

 

21.  The Metropolitan Police argue that this was an unsustainable finding on the evidence. Mr Shankster’s suggestion (quoted at paragraph 9 above) must be seen in the light of the evidence as a whole. The public authority’s initial response to Mr Mackenzie’s request was to explain that the type of information requested was not held centrally; rather, any such information was held, if at all, in both electronic and paper filing systems at “more than 32 Borough/Operational Command Units (B/OCUs).” The internal review referred to “over 45” B/OCUs (i.e. the 32 London Borough police commands together with central units such as Counter Terrorism Command and Trident Gang Command). The internal review referred to a total of some 2,000 different officers who would need to be contacted, taking request (1) by itself well over the section 12 cost limit. Mr Shankster provided more information on the methodology adopted in his letter to the Commissioner (dated 13 November 2013, and which included the suggestion relied on by the Tribunal) and his subsequent witness statement for the Tribunal.

 

22.  At this stage one needs to go back to the original request. Part (1) asked “Please could you tell me [as at 22 December 2012] if the Metropolitan Police is involved in any joint agency operations which include surveillance?” This was, by any token, a very wide ranging request. The organisational structure of the Metropolitan Police has already been noted. The evidence demonstrated that it worked in joint operations with a large number of other agencies (e.g. other police forces, British Transport Police, the security services, local authorities and even some third sector bodies such as the RSPCA). Surveillance may also be covert or overt.

 

23.  Given the thrust of the evidence submitted by the public authority, Mr Shankster’s suggestion did not hold out any realistic prospect that even part (1) of the request could be refined in such a way as to bring it below the cost limit. All he was saying was that a very different type of request might not exceed the cost limit. However, any such request would have to be confined to asking about joint agency operations involving surveillance but only within a particular unit (e.g. solely within Royal Protection Command). Even then, of course, specific exemptions under FOIA might then come into play. Such a formulation was a very long way from Mr Mackenzie’s original part (1) request. Mr Mackenzie had contemplated refining his request to joint surveillance operations conducted by the Metropolitan Police with a particular outside agency. However, for the reasons explained by the public authority, this would still have faced the same problems as regards the application of the section 12 cost limit.

 

24.  It follows that I agree with the public authority that the Tribunal’s finding in relation to Mr Shankster’s suggestion was unsustainable on the evidence before it. All Mr Shankster was suggesting was that on another day another and much more narrowly defined FOIA request about joint agency surveillance within a particular Metropolitan Police B/OCU might fall within the cost limit (but might still face difficulties with exemptions). He was not suggesting that there was any realistic way of redefining the core of the request such that section 12 would not come into play. As the First-tier Tribunal argued in Beckles, “Even if some further investigative route could have been eventually discovered, it is not reasonable to expect an authority to lavish ingenuity upon such a quest” (at [19]).

 

Ground (3): part (1) of the request and the section 12 cost limit

25.  The Metropolitan Police’s third ground of appeal is closely allied to its second ground. The Tribunal concluded it was more probable than not that dropping parts (2) and (3) of the request could have brought the request within the section 12 cost limit (at [30]). The Tribunal provides no reason for this conclusion, other than a passing reference to “the evidence before us”. There is no mention of which parts of the evidence were accepted or rejected and why that was so. The Tribunal’s conclusion also sits very uneasily with its earlier recognition that “the Respondents have made a strong case that the cost limit would be exceeded” (at [21]). True, the Tribunal went on to express the view that the Respondents “have taken a view of the request which makes it appear more complicated than perhaps it really is” (at [21]). However, the Tribunal did not explain in what way the request had been made to appear to be more complicated “than perhaps it really is”. The reader is neither wiser nor better informed.

 

26.  This ground of appeal is essentially a straightforward adequacy of reasons challenge. The Metropolitan Police is entitled to know why its argument on part (1) of Mr Mackenzie’s request and the cost limit failed. The Tribunal’s decision with reasons does not tell it why it lost, even when read in the context of the evidential material before the Tribunal.

 

Conclusion

27.  I do not need to express a concluded view on the Metropolitan Police’s first ground of appeal. Its second and third grounds of appeal succeed. I therefore allow the public authority’s appeal and set aside the Tribunal’s decision.

 

The disposal of the appeal against the Commissioner’s Decision Notice

28.  Having set aside the Tribunal’s decision, I can either send Mr Mackenzie’s underlying appeal against the Information Commissioner’s Decision Notice back for a re-hearing in front of a new Tribunal or I can re-make the Tribunal’s decision myself (Tribunals, Courts and Enforcement Act 207, section 12(2)(b)).

 

29.  In the event of the appeal succeeding, the appellant public authority invites me to take either of those two courses of action. The Information Commissioner suggests in this event that I re-make the decision rather than remit to a freshly constituted tribunal. Mr Mackenzie has not expressed a view either way.

 

30.  I agree with the Information Commissioner. There have already been two paper hearings in this matter at the level of both First-tier Tribunal and Upper Tribunal. There is no indication that anyone is going to request an oral hearing were the matter to be remitted to the tribunal below. The arguments on all sides have been carefully marshalled in the written submissions. In those circumstances it would be wholly disproportionate to direct an oral hearing, either at this level or below. Furthermore, the subject matter of this appeal is not of a type that makes the resolution of the appeal particularly well suited to being dealt with by a three-member expert panel of the First-tier Tribunal (contrast Chief Constable of Devon and Cornwall v Information Commissioner and SM [2011] UKUT 34 (AAC) at paragraph 19, per Judge Turnbull).

 

31.  I turn therefore to re-make the decision of the Tribunal on Mr Mackenzie’s appeal against the Commissioner’s decision notice. There were two grounds of appeal, which I take in the same order as the Tribunal.

 

32.  I dismiss the second ground of appeal, which concerns the public authority’s section 16 duty, essentially for the same reasons as set out above. The Commissioner’s conclusion was that the public authority was aware of its obligations under section 16, had considered whether there was any advice or assistance that could be offered, but had been unable to offer any practical suggestions. That was a decision that was made in accordance with the law, in particular so far as section 16 was understood and explained e.g. in Beckles v Information Commissioner. Furthermore, insofar as it involved any exercise of a discretion by the Commissioner, he should not have exercised his discretion differently (FOIA, section 58(1)).

 

33.  The first ground of appeal concerns the application of the cost limit. There is no dispute that the combined effect of section 12 of FOIA and regulations 3(3) and 4(4) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (SI 2004/3244) is that the cost limit is £450 in this case, or 18 hours’ work. Further, a public authority’s time and cost estimate must be “reasonable”, in the sense of being “sensible, realistic and supported by cogent evidence”: Randall v Information Commissioner and Medicines and Healthcare Products Regulatory Agency, EA/2007/0004, BAILII: [2007] UKIT EA_2007_0004 , at [12] and see also Roberts v Information Commissioner, EA/2008/0050, BAILII: [2008] UKIT EA_2008_0050 at [10], as approved by the Upper Tribunal in ALL PARTY PARLIAMENTARY GROUP ON EXTRAORDINARY RENDITION (APPGER) v Information Commissioner and Ministry of Defence [2011] 2 Info LR 75 at paragraph 27.

 

34.  The Metropolitan Police has set out in some detail why it considers that even part (1) of the request alone would exceed the cost limit. As noted above, there are some 45 geographical or centralised command units within the force which may be engaged in joint agency surveillance. Mr Shankster’s evidence was also that there were some 200 officers who have the power to authorise covert surveillance and a further 1,700 with sufficient rank to approve overt surveillance. The public authority’s position at internal review was that even if the search for information on part (1) of the request took just a minute of each such officer’s time, this would amount in aggregate to over 33 hours of staff time.

 

35.  In response to the Commissioner’s enquiries, the public authority looked at a different way of estimating the cost involved. Mr Shankster contacted the force’s Coordination and Tasking Office (CaTO), which covers various operations in receipt of additional central funding. This had records of some 166 such operations in 2012. It was further estimated that 2 minutes per application was a reasonable time to assess whether such operations fell within the ambit of part (1) of the request, making an initial 5½ hours of work. Conducting a similar exercise with six of the units within the Serious Crime and Operations Directorate (e.g. Trident Gang Command), dependent only on devolved funding, resulted in a conservative estimate of a further 600 operations to be assessed at 2 minutes per operation (i.e. a further 20 hours). In other words, the time estimate had already reached 25½ hours of work, well above the statutory cap of 18 hours. This was before the 32 Borough Commands had been approached with regard to part (1), never mind any consideration of parts (2) and (3) of the request.

 

36.  Mr Mackenzie makes a number of points by way of challenge to the public authority’s cost estimate. I do not find them persuasive for the following reasons.

 

37.  First, he argues that (as he put it in his request for an internal review) “I believe it unlikely that there would not be some aggregated record of surveillance within areas and/or at wider level which could be assessed simply.” However, as the Commissioner noted in his decision notice (at [19]-[20]), FOIA is not a means of reviewing a public authority’s record-keeping and in some way testing it against best practice. In this case the Metropolitan Police has explained how information relevant to the request was collated and stored. The fact that Mr Mackenzie thinks there are obviously better ways of undertaking that task which can be assumed to be in place is neither here nor there.

 

38.  Second, Mr Mackenzie argues that it is unreasonable for the force to assert that “it would need to contact all of its thousands of officers”. I accept that the rather condensed account given on internal review might be read in this way. However, as the matter has developed it is plain that there has been no suggestion from the Metropolitan Police that it would need to contact all of its 32,000 officers. Its initial position was that it would need to contact the 2,000 or so officers with the power to authorise surveillance. However, in later iterations it is clear that the force’s argument was that even a more targeted approach to record keepers in the various B/OCUs would comfortably exceed the 18 hour limit.

 

39.  Third, Mr Mackenzie suggests there is an element of duplication in the Metropolitan Police’s estimates, as CaTO only keeps records on surveillance operations which required additional central funding. Thus, he argues, the proper approach is to ignore CaTO’s role and focus on the records of units running operations on devolved budgets. However, this is to miss the point. The CaTO sampling exercise was used to demonstrate the likely time requirement for checking records in one unit. A similar exercise in six units within the Serious Crime and Operations Directorate generated an estimate of 20 hours, without recourse to the local Borough Commands.

 

40.  Fourth, in his response to Mr Shankster’s witness statement, Mr Mackenzie argues that it was implicit in his request that he was concerned with covert surveillance and not overt surveillance. However, he had not provided that clarification earlier. In any event, given the extent of joint agency working and the record keeping practices described by the public authority, I doubt this would have had a significant impact on the calculation of the likely time required. It is true, of course, that only 200 officers had the power to authorise covert surveillance (rather than the 1700 officers who could approve overt surveillance). However, the retrieval process identified in the CaTO sampling exercise, when replicated across the various B/OCUs within the force, demonstrated that the nature of the enquiry was still too broad to fall within the cost limit.

 

41.  For these reasons I accept the public authority’s arguments on the cost limit and reject those of Mr Mackenzie. It therefore follows that I find no relevant error in the Commissioner’s decision notice.

 

42.  The moral of this case is perhaps this. The question of whether a request falls foul of the cost limit in section 12 is likely to be a function of two factors. The first is the breadth of the request itself, a matter over which the requestor has a considerable degree of control. By definition a carefully focussed FOIA request is less likely to be caught by the cost limit. The second factor concerns the record-keeping practices of the public authority, a matter over which the individual requestor obviously has no control. It may be more difficult to avoid the impact of the section 12 cap when making a request to a relatively decentralised public authority. However, the fact is that FOIA is about the citizen’s right to information, subject to certain safeguards, checks and balances. It is not a statute that prescribes any particular organisational structure or record-keeping practice in public authorities.

 

Conclusion

43.  I therefore allow this appeal to the Upper Tribunal. The decision of the First-tier Tribunal is set aside. I re-make the Tribunal’s decision in the following terms:

 

The Tribunal upholds the decision notice dated 2 December 2013 (FS50503796) and dismisses the appeal.

 

 

 

Signed on the original Nicholas Wikeley

on 22 October 2014 Judge of the Upper Tribunal