Aaron Walawalkar v The Information Commissioner & Anor

Under Freedom of Information Act 2000 section 11(1), the requirement to give effect, so far as reasonably practicable, to an applicant’s preferred means of communication is an all-or-nothing test. It asks whether it is reasonably practicable to provide all information within the request by that means. It does not require disclosure of as much information as can practicably be converted into the preferred format.

Section 11 concerns the means of communicating information, not the substantive entitlement under section 1. It arises only once the authority is obliged to communicate the requested information and does not expand that entitlement. The statutory cost limit and the public interest in disclosure are not components of the section 11 practicability assessment.

The appellant requested recordings of distress calls between people in the English Channel and HM Coastguard during a specified week, together with transcripts. The Maritime and Coastguard Agency refused the request. In relation to transcripts, the Information Commissioner concluded that producing transcripts of all calls was not reasonably practicable under section 11 of the Freedom of Information Act 2000.

The First-tier Tribunal (General Regulatory Chamber) dismissed the appellant’s appeal on 29 December 2023. The appellant appealed to the Upper Tribunal, contending that section 11(1) required a public authority to provide transcripts incrementally, up to the point at which further transcription was no longer reasonably practicable.

The central issue was whether section 11(1) imposes a sliding-scale obligation or an all-or-nothing test for an applicant’s preferred means of communication.

1. Appeal dismissed. Section 11(1) of the Freedom of Information Act 2000 imposes an all-or-nothing test. The object of the phrase “so far as reasonably practicable” is the information specified in the request. The question is whether it is reasonably practicable to communicate all of that information by the preferred means, not how much of it can be supplied before the task becomes impracticable.

2. The information requested under section 1 is a unitary concept. A public authority’s duty, if it arises, is to communicate the information described in the request, rather than a subset selected by reference to available effort. The statutory structure, including the cost exemption in section 12, confirms that the request is assessed as a request for all information within its description.

3. Section 11 is concerned only with the means of communication. It is additional to, and does not qualify, the section 1 duty to communicate information. It should be considered only after exclusions and exemptions which remove the section 1 duty have been resolved. The preferred means cannot create a greater entitlement to information, nor is it relevant to whether information is held for section 1 purposes. This follows the distinction explained in Independent Parliamentary Standards Authority v Information Commissioner and Leapman [2015] EWCA Civ 388.

4. Cost may be considered directly under section 11(2), but the section 12 cost limit is not a guide or cap for section 11. Nor does the public interest in disclosure form part of the practicability assessment under section 11.

5. The Commissioner had assessed whether it was practicable to provide transcripts of all calls and concluded that it was not. The appellant’s challenge depended on the rejected sliding-scale construction. Although the First-tier Tribunal’s reasoning was not wholly clear, it made no material error of law in dismissing the appeal.

• Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed. The First-tier Tribunal made no material error of law in upholding the Information Commissioner’s conclusion under section 11 of the Freedom of Information Act 2000.
• First-tier Tribunal (General Regulatory Chamber, Information Rights): Dismissed the appellant’s appeal against the Information Commissioner’s Decision Notice on 29 December 2023.
• Information Commissioner: Decision Notice dated 24 January 2023 concluded that supplying the requested information as transcripts was not reasonably practicable under section 11.