The ICO exists to empower you through information.

The Commissioner’s decision notices can be appealed. Our approach to FOIA and the EIR is informed by case law, which develops through decisions of the courts and tribunals.

You can find decisions of the First-tier Tribunal (General Regulatory Chamber) and Upper Tribunal (Administrative Appeals Chamber) on the Find case law website.

The Upper Tribunal’s decisions become binding case law, even though sometimes a further appeal is allowed to the Court of Appeal. We’ve picked out some recent Tribunal decisions of note.

What can be included when estimating the cost of “extraction”?

Under section 12 of FOIA, a public authority can refuse a request if it would take too long to deal with it. This is known as the cost exceeding the appropriate limit. Only certain costs can be taken into account, including the cost of extracting the information.

But what does “extracting” mean? In appeal ref EA/2020/0008V (2020), the authority said it needed to extract the information from different computer systems, and would need to write a new query (program) to do this. The First-tier Tribunal agreed that extraction would include:

  • Determining and designing the methodology; 
  • Setting up the searches; and 
  • Carrying out checks that the data was being extracted correctly. 

However, they found that extraction would not include the time that the computer took to run the various processes. 

What does this decision mean for public authorities?  

This provides further clarity as to what public authorities can and cannot  include in estimating of the cost of compliance. This case is referred to in our updated guidance on section 12 FOIA

What if some personal data is already in the public domain?

In appeal reference GI/3037/201, the Upper Tribunal (“UT”) considered a request for a report about whistleblowing at a council. The council had withheld it under section 40(2) FOIA – personal information. 

The appellant disagreed, because some related information was already in the public domain.  
The UT noted there had been previous local media and social media interest in the matter. The information in the public domain was not the same as that in the report, and, in fact, revealed there was a motivated intruder in this case, who would likely seek to identify individuals. They found that, if the report were disclosed, the information in the public domain would be likely to:

  • lead to identification of the individuals in the report; and 
  • increase the distress caused to the individuals, since there would be renewed interest. 

They concluded that the council had correctly relied on section 40(2) FOIA.

What does this decision mean for public authorities?  

This case shows that related information being in the public domain can, in fact, make it less likely that personal data can be disclosed under FOIA. 

Legally privileged information: how does the in-built public interest in non-disclosure affect the public interest test?

In appeal ref. UKUT 60 (AAC) (2022), the Upper Tribunal reaffirmed the long-standing ruling in DBERR v O’Brien v IC [2009] EWHC 164 QB. In that ruling, the High Court decided that where information is legally privileged, “the in-built public interest in non-disclosure… carries significant weight which will always have to be considered in the balancing exercise”. This decision is referred to in our recently refreshed guidance on section 42 FOIA.

Tribunal Decision:

  • There’s a significant in-built public interest in favour of non-disclosure when information engages section 42 of FOIA (legal professional privilege). 
  • This in-built public interest is always a weighty factor. However, it doesn't mean that there's a presumption of non-disclosure.

What does the decision mean for public authorities?

  • Don’t presume that legally privileged information shouldn’t be disclosed;
  • Do recognise there’s a significant weight in favour of non-disclosure, because of the importance of client confidentiality

Can public authorities rely on the security bodies/ national security exemptions ‘in the alternative’?

In appeal ref. UKUT 248 (AAC) (2021), the Upper Tribunal considered whether the wording of section 17(1) FOIA prevented the FCDO from relying on section 23(1) and section 24(1) ‘in the alternative’. 

Section 23(1) is an absolute exemption, and applies to information supplied by (or relating to) certain specified security bodies. Section 24(1) is a qualified exemption which applies to information not covered by section 23(1), if it’s necessary in order to safeguard national security.

The Upper Tribunal found that the FCDO did not have to specify, to the requester, which of the two exemptions it was relying on. This allowed it to protect the interests of national security by masking whether the requested information related to one of the relevant security bodies.

This supported the approach set out in our guidance on how section 23 and 24 interact.

Tribunal Decision:

  • Section 23(1) and section 24(1) of FOIA can be relied on ‘in the alternative’. That is, an authority can state that it’s relying on one or other of the exemptions, without specifying which one. 
  • This is in spite of the wording of section 17(1), which requires the authority to specify the exemption it’s relying on, in its refusal notice.

What does the decision mean for public authorities?

  • You can refuse a request for information on the basis that you’re relying on one or other of section 23(1) FOIA or section 24(1) FOIA, without specifying which.