The Independent Parliamentary Standards Authority v The Information Commissioner & Anor [2015] EWCA Civ 388

[2015] EWCA Civ 388

Case No C3/2014/1044

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Upper Tribunal Judge David Williams

[2014] UKUT 33 (AAC)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28/04/2015

Before

THE MASTER OF THE ROLLS

LORD JUSTICE RICHARDS

LORD JUSTICE RYDER

Between

The Independent Parliamentary Standards AuthorityAppellant

(1) The Information CommissionerRespondents

(2) Mr Ben LeapmanRespondent

Philip Coppel QC (instructed by Addleshaw Goddard LLP) for Appellant

Robin Hopkins (instructed by the Solicitor to the Information Commissioner) for First Respondent

for The Second Respondent did not appear and was not represented on the appeal

Hearing Hearing date : 24 March 2015

Judgment

Lord Justice Richards :

[1]This appeal concerns invoices and receipts submitted by Members of Parliament in support of their claims for reimbursement of official expenditure. The Independent Parliamentary Standards Authority (“IPSA”), the statutory body established by the Parliamentary Standards Act 2009 to oversee the claims process (among other functions), publishes details of claims on its website but does not publish copies of the supporting invoices or receipts. In December 2010 Mr Ben Leapman, then a journalist at The Daily Telegraph, made a request to IPSA under section 1(1) of the Freedom of Information Act 2000 (“FOIA”) for the information contained in three such documents to be communicated to him. IPSA responded with a transcript of information contained in the documents, including information additional to that published on its website, but refused to provide copies of the documents themselves.

[2]Mr Leapman complained to the Information Commissioner (“the Commissioner”), who held that in order to communicate all the information contained in the documents it was necessary to provide copies of the documents themselves and that by failing to do so IPSA was in breach of section 1(1) of FOIA. IPSA’s appeal to the First-tier Tribunal against that decision, and a further appeal to the Upper Tribunal, were dismissed. A yet further appeal is now brought to this court.

[3]Although the direct concern of the appeal is with three specific invoices or receipts (I shall refer to them simply as invoices), it is a test case and has important implications for IPSA and, no doubt, for other public authorities.

The legislation

[4]Part I of FOIA concerns access to information held by public authorities. Section 1(1) confers an entitlement in these terms:

“1. General right of access to information held by public authorities (1) Any person making a request for information to a public authority is entitled – (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him.”

[5]By section 84, “information” means information recorded in any form, subject to provisions that are not material to this case. The entitlement under section 1(1) therefore relates only to recorded information. The term “information” itself, however, is not further defined.

[6]Section 1(2) provides that section 1(1) has effect subject to the following provisions of section 1 and to the provisions of sections 2, 9, 12 and 14. None of those provisions is directly in issue in the present appeal.

[7]By section 8(1), any reference in FOIA to a “request for information” is a reference to such a request which(a) is in writing,

(b) states the name of the applicant and an address for correspondence, and

[8]Section 11 concerns the means by which information is to be communicated pursuant to a request: “11. Means by which communication to be made(1) Where, on making his request for information, 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 information in permanent form or in another form acceptable to the applicant, (b) the provision to the applicant of a reasonable opportunity to inspect a record containing the information, and (c) the provision to the applicant of a digest or summary of the information in permanent form or in another form acceptable to the applicant, the public 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 information by particular means, the public authority may have regard to all the circumstances, including the cost of doing so.

(3) Where the public 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) Subject to subsections (1) and (1A), a public authority may comply with a request by communicating information by any means which are reasonable in the circumstances.” (a) the provision to the applicant of a copy of the information in permanent form or in another form acceptable to the applicant, (b) the provision to the applicant of a reasonable opportunity to inspect a record containing the information, and (c) the provision to the applicant of a digest or summary of the information in permanent form or in another form acceptable to the applicant,

[9]Enforcement is dealt with in Part IV. By section 50(1), any person (referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I. Where the Commissioner receives such an application, one of the steps he may take, pursuant to section 50(3), is to serve a decision notice on the complainant and the public authority. Section 50(4) provides:

“Where the Commissioner decides that a public authority – (a) has failed to communicate information, 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 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.”

[10]By section 57, there is a right of appeal to the First-tier Tribunal against the Commissioner’s decision notice. The determination of such an appeal is governed by section 58: “58. Determination of appeals(1) If on an appeal under section 57 the Tribunal considers – (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.” (a) 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,

[11]There is the usual onward route of appeal on a point of law to the Upper Tribunal and then to the Court of Appeal.

IPSA’s general approach towards the publication of information about MPs’ expenses

[12]IPSA’s general approach towards the publication of information about MPs’ expenses forms the background to the case. It is described in a lengthy witness statement of Mr Andrew McDonald, IPSA’s former chief executive, dated 5 April 2013 and filed in support of IPSA’s appeal to the First-tier Tribunal. The detailed figures given in the statement are no doubt out of date but we were told nothing to suggest that there has been any material change in the overall position. I take the following salient points from the statement.

[13]The MPs’ Scheme of Business Costs and Expenses sets out what MPs can and cannot claim. The scheme requires evidence-based claims. Where MPs have paid for an expense, they make a claim for reimbursement by completing a claim form online and then printing it out and sending it to IPSA together with the relevant receipts. IPSA logs the arrival of claim forms and receipts on the online system, carries out initial checks and sends a list of claims and receipts to its validation team. The receipts themselves are scanned in and stored in the system and are electronically linked to the relevant claims. They are used for validation purposes but, as explained below, are not published.

[14]IPSA publishes MPs’ claims on a bi-monthly basis and also publishes an annual summary of spend by each MP. The IPSA Board has explicitly addressed the issue of whether it should publish actual receipts, a proportion of receipts or “transactional information”. It has decided to publish only transactional information, for three reasons in particular. First, it is considered that IPSA’s independence, its clear rules and its effective validation regime provide the level of assurance needed by IPSA and the public that claims are regular and proper. Secondly, publishing receipts carries a significant risk of data protection breaches, with extremely negative consequences for MPs and IPSA. Thirdly, and most importantly, publishing transactional information provides very high levels of transparency at low cost.

[15]As to cost, as at the date of Mr McDonald’s statement IPSA had a back catalogue of over 625,000 receipts. It was estimated that publication of the back catalogue together with the receipts likely to be received over the next three years, all redacted so as to give effect to relevant exemptions, would cost an additional £3.64 million and would lead to a permanent increase of 10 people (or 20%) in staff complement. IPSA does not consider this to be a cost-effective approach from the taxpayers’ point of view.

[16]Mr McDonald’s statement also contains an exposition of the way in which IPSA responds in general to requests for information pursuant to FOIA. I can concentrate, however, on its response to the specific request in issue in this appeal, to which I now turn.

Mr Leapman’s request and IPSA’s response

[17]The relevant request from Mr Leapman to IPSA, dated 9 December 2010, was in these terms:

“I would like to request the release of information by Ipsa under the terms of the Freedom of Information Act 2000. I would like to see the original receipts submitted by several MPs in support of expenses claims during the period May-August 2010. Ipsa has published details of the claims on its website, but has not published the original receipts (despite the High Court ruling in May 2008 that the disclosure of receipts was in the public interest). The receipts I would like to see relate to the claims: Claim Ref No 11770 – John Bercow – £652.13 – ‘general admin’ – ‘Website design/production’ – 01.07.2010 Claim Ref No 14434 – Alan Keen – £63.61 – ‘general admin’ – ‘stationery/banner’ – 02.07.2010 Claim Ref No 14055 – George Osborne – £145.70 – ‘general admin’ – ‘headed paper’ – 27.05.2010 Please do not hesitate to contact me if you need to clarify any aspect of this request. Whilst I would prefer to see the original receipts in unredacted from, I appreciate that elements may need to be redacted for security reasons.”

The receipts I would like to see relate to the claims:

[18]IPSA’s reply, by letter dated 13 January 2011, confirmed that it held the information requested. The letter referred to IPSA’s general policy not to publish images of receipts or invoices supporting claims. It continued:

“You requested a copy of the receipts for the following: … [the three items were listed] The following tables provide the information released on IPSA’s publication website relating to these claims, as well as all additional information contained on the invoice. Please note that we have withheld the invoice number, BACS codes and account numbers. We have withheld this information under Section 31(1)(a) (Law enforcement) of the FOI Act …. We have also withheld information regarding the home address of Mr Alan Keen MP under section 40 (personal information) of the FOI Act as the information constitutes third party data ….”

The tables that followed set out, for each invoice, “Information published on IPSA website” and “Additional information extracted from invoice and releasable under the FOI Act”. The latter consisted of entries such as “Address invoice sent to”, “Name of supplier”, “Contact details of supplier”, “Invoice details” and “Other information on invoice”, with a transcription of the corresponding words and figures on the invoice.

… [the three items were listed]

[19]Mr Leapman requested an internal review of the decision.

(a) or section 40 but he stated:

“My request was for original receipts. What I have been sent is a copy of the wording on the receipts, retyped. This is not the same thing, and I would still like to see the original receipts.”

Among the grounds he put forward in support of the request was that by the time IPSA had gone to the effort and expense of keying in the details provided to him, he did not believe that it would be a great deal more expensive or time-consuming to “scan the receipts in, redact them and release them”; and that “there is a public interest in seeing the receipts so that the public can judge for themselves how genuine and justified the expenditure seems, based on aspects – handwriting, letterheads etc – which cannot be seen on the form in which the information has been provided to me thus far”.

[20]The internal review confirmed IPSA’s original decision. Mr Leapman then complained to the Commissioner.

The Commissioner’s decision

[21]The Commissioner issued a decision notice dated 22 October 2012, upholding the complaint and requiring IPSA to provide Mr Leapman with copies of the three invoices, subject to the redaction of the information withheld under section 31(1)(a) and section 40(2) of FOIA. The Commissioner considered that Mr Leapman’s request for “original receipts” should be interpreted as a request for all the recorded information contained within the three invoices, and the core question addressed in the decision notice was whether IPSA had disclosed all of the non-exempt recorded information contained within them. On that question the Commissioner first made some general points and then considered the specifics of the individual case.

[22]As to general points, the decision notice acknowledged that section 1 of FOIA is drafted so as to provide a right to information rather than copies of documents. It stated that a request for a copy of a document will generally be a valid request for all of the information contained within that document unless the context of the request makes clear that this is not the case; and that in practice, in the vast majority of cases the only way to communicate all of the information recorded in a document will be to provide the applicant with a copy of the document. Specifically:

“19. A document will often contain additional recorded information over and above the main text. The Commissioner considers that a complete and accurate copy of the relevant document(s) containing the requested information will contain all of the recorded information included within the original document. Therefore, in providing a complete and accurate copy of a document containing all the requested information a public authority will be complying with its obligations under section 1 of the FOIA. 20. Where a public authority chooses instead to extract information from a document and provide this to a requester in the form of a transcript, and the requester complains that they have not been provided with all of the recorded information within the scope of their request, the Commissioner has to determine whether the public authority has extracted and disclosed all of the recorded information from the relevant document(s). In the vast majority of cases, the Commissioner does not consider that it will be possible to transcribe all the recorded information contained within a document. To the extent that a public authority did not disclose any non-exempt recorded information contained within the relevant document(s) it will be in breach of section 1(1)(b) of the FOIA.”

[23]As to the individual case, the decision notice stated that the Commissioner, having compared the transcripts of the information extracted from the invoices with copies of the originals, considered that there was information contained within the invoices over and above that included in the transcripts. The information was divided into four categories:(a) characters – letters, figures or symbols;

(b) logos and letterheads;

(d) layout, style and/or design of a document. In relation to category (a), the Commissioner identified minor omissions in the transcript. IPSA accepts that point and no further issue arises in respect of it.

(b) to (d), in relation to which the decision notice said this:

“Logos and Letterheads 29. The transcripts provided to the complainant included the names of the companies that had issued the receipts/invoices for the goods or services they had provided. However, the transcripts did not include the relevant company logo and/or letterhead included on each receipt/invoice. 30. IPSA has argued that elements of the receipts/invoices, such as the design of the logo, are merely presentational and do not convey any additional information. The Commissioner does not agree that these elements of the documents are purely presentational – he considers that the logo and/or letterhead of a company on an invoice/receipt are recorded information which informs the observer of the legitimacy of the document. He notes that these elements are often specifically designed to give a company a unique identity. For example, if a number of receipts/invoices were submitted in support of expenses claims for goods and/or services provided by the same company an observer would be able to determine whether the letterhead and/or logo on the documents was consistent. If a subsequent claim was made which included an entirely different letterhead and/or logo for the same company, questions might be raised about the legitimacy of the later claim. As the complainant has argued, this information cannot be derived from the transcribed information as, regardless of any differences in the logo and/or letterhead, this element of the transcripts would be the same. 31. The Commissioner has considered whether the information, such as the logo and/or letterhead is ‘recorded information’ contained within the document or whether, in the scenario outlined above, the further information is derived from an interpretation of the document by the observer ie that the design of the logo/letterhead are not ‘recorded information’ but allow the observer to draw their own conclusions. He is in no doubt that the logo and/or letterhead are ‘recorded information’ and it is from this ‘recorded information’ that, in some cases, the observer can make their own informed conclusions based on comparisons of the ‘recorded information’ in different documents. 32. For the reasons outlined above, the Commissioner considers that the logos and letterheads contained within the three receipts/invoices are ‘recorded information’. IPSA is required to disclose this information. Handwriting/Manuscript Comments 33. IPSA has argued that the transcripts it provided to the complainant included the handwritten notes/manuscript comments in a printed form. 34. The Commissioner considers that the style and appearance of handwriting is recorded information over and above the words used. For example, what a person’s signature looks like on a letter will be information over and above their name. 35. The wording on [one invoice] states: ‘Paid 17.06.10 [what appears to be the name of individual that made the note]’. IPSA’s transcript of the receipt included the wording ‘Paid 17.06.10’ in the form of printed text. However, it omitted what appears to be the name of the person that either paid the invoice or at least recorded that it was paid, which is handwritten under the date. The Commissioner considers that this is recorded information contained within [that] invoice which IPSA is required to disclose to the complainant. 36. The Commissioner also considers that the visual style of the individual’s handwriting that made the manuscript note is recorded information over and above the words used. IPSA is required to disclose this information. Layout, style and/or design of a document 37. IPSA provided the complainant with transcripts, rather than copies of the documents containing the recorded information. Therefore, the complainant did not receive any information as to the layout, style and/or design of the receipts/invoices. 38. As outlined above in relation to logos and letterheads, the Commissioner considers that the way in which information is recorded in a document and/or its appearance is recorded information for the purposes of the FOIA. 39. In this case, the recorded information contained within the receipts/invoices can inform the observer about the legitimacy of the expenses claims. As the complainant has argued, a comparative analysis of copies of receipts/invoices submitted to IPSA would allow the observer to draw their own conclusions about the legitimacy of expenses claims. The layout, style and/or design of a receipt is important in this analysis as, if a company uses a standard template for invoices/receipts and a receipt has been submitted that differs in layout, style and/or design, it would allow an observer to draw conclusions about the legitimacy of the claim and raise their concerns (whether these were legitimate concerns or not). 40. The Commissioner considers that the layout, style and/or design of the three receipts/invoices is recorded information for the purposes of the FOIA. IPSA is required to disclose this information.”

Handwriting/Manuscript Comments

Layout, style and/or design of a document

[24]The Commissioner’s conclusion was as follows:

“44. The Commissioner does not consider that IPSA could communicate all the information that it [is] obliged to disclose under section 1 of the FOIA to the complainant without providing copies of the three receipts/invoices containing the recorded information. IPSA is therefore required to disclose copies of the three receipts/invoices with the information IPSA has withheld under section 31(1)(a) of the FOIA (law enforcement) and section 40(2) of the FOIA (third party personal information) redacted from the documents.”

[25]The decision notice also contained points relevant to the secondary issues in the case, to which I will refer as appropriate when examining those issues.

The tribunal decisions

[26]IPSA’s appeal to the First-tier Tribunal against the Commissioner’s decision was dismissed by a determination dated 29 April 2013. The tribunal received oral evidence from Mr McDonald in addition to the written evidence. It followed the Commissioner’s approach in identifying the principal question as being whether there was non-exempt information contained within the invoices that was not conveyed to Mr Leapman by the method of disclosure selected by IPSA. It concluded that, on balance, all four categories of material cited by the Commissioner as not being disclosed by that method “either were or were clearly capable of constituting information”. It rejected IPSA’s case that categories (b) to (d) were “merely presentational”. It accepted, and added to, the Commissioner’s examples of how categories (b) to (d) could readily contain information. It noted that IPSA itself insisted on seeing invoices from MPs with a view to checking their legitimacy rather than accepting a claim based on information extracted from an invoice; and it took that as a clear acknowledgment by IPSA that categories (b) to (d) either were or were clearly capable of constituting information. It also noted Mr McDonald’s acknowledgment, apparently in oral evidence, that “sight of the receipt might be more informative”.

[27]The tribunal went on to make findings in favour of the Commissioner on the secondary issues. Again, however, those findings are more conveniently considered when examining the issues themselves.

[28]IPSA’s further appeal to the Upper Tribunal was dismissed by a determination dated 23 January 2014. The Upper Tribunal judge rejected IPSA’s submissions on all relevant issues and found no material error of law in the decision of the First-tier Tribunal, which he described as being “in reality … an affirmation of the decision of the Commissioner” (paragraph 44).

[29]Permission to appeal to this court was granted by the Upper Tribunal judge himself.

The issues in the appeal

[30]There are five grounds of appeal but they can be considered within the framework of two broad issues:(1) whether, by providing transcripts rather than copies of the invoices themselves, IPSA failed to communicate recorded information to which Mr Leapman was entitled; and

(2) whether the means of communication adopted by IPSA were nevertheless sufficient in the circumstances to satisfy its duty to comply with Mr Leapman’s request. Issue (1) encompasses the third and fourth grounds of appeal and is the central issue in the case. Issue (2) encompasses the remaining grounds of appeal and involves consideration of a number of secondary questions under section 11 of FOIA.

[31]The formal question for this court is whether the Upper Tribunal erred in law in finding that there was no material error of law in the decision of the First-tier Tribunal. In practice, however, the focus of attention can be on the Commissioner’s decision notice, since in dismissing the appeal against it the First-tier Tribunal evidently accepted the legal and factual basis on which it was made. That is why I have set out the Commissioner’s reasoning at greater length than the reasoning of the tribunals. I will, however, also need to address some specific criticisms that Mr Coppel made of the tribunals’ decisions. Issue (1): was there a failure to communicate recorded information to which Mr Leapman was entitled?

[32]IPSA’s case on this issue is that by providing the transcripts it did, it communicated to Mr Leapman all the information to which he was entitled under section 1(1) and that the Commissioner and the tribunals erred in law in holding that the invoices contained additional information within categories (b) to (d) to which Mr Leapman was entitled and which could only be communicated in its entirety by providing him with copies of the documents.

[33]As already noted, the entitlement under section 1(1) relates to recorded information but “information” 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 Scottish Information Commissioner [2008] UKHL,

[2008] 1 WLR 1550

, a case under the materially identical Freedom of Information (Scotland) Act 2002, Lord Hope said that “[t]here is much force in Lord Marnoch’s observation in the Inner House … that, as the whole purpose of the 2002 Act is the release of information, 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 information 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 “information” 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 “information” is not limited to words and figures but extends to visual and aural information (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 Reed, 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 Information (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 Information Request 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 information requested was available for purchase in the form of 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 Reed stated at paragraph 42 of the opinion that the first question was whether the emails were requests for information 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 information; and section 73 defines ‘information’, for the purposes of section 1, as meaning ‘information recorded in any form’. That terminology, which reflects that of the Freedom of Information Act 2000, was carefully chosen: most earlier freedom of information legislation in other jurisdictions confers a right of access to documents (as in the Commonwealth of Australia Freedom of Information Act 1982) or to records (as in the Canadian Access to Information Act 1982, the Irish Freedom of Information Act 1997 and the United States Freedom of Information Act 1966); and the New Zealand Official Information Act 1982, which requires ‘official information’ to be made available on request, is not restricted to recorded information. The word ‘information’ 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 Kwok 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 information. Secondly, it is implicit in the definition that a distinction is drawn between the record itself and the information which is recorded in it. That is consistent with section 11(2)(c), which implies that ‘information’ 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 information. What a person can request, in terms of section 1(1), is the information which has been recorded, rather than the record itself. The right conferred by section 1, where it applies, is therefore to be given the information, rather than a particular record (or a copy of the record) that contains it. Put shortly, the Act provides a right of access to information, 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 information contained in it and that the statutory entitlement relates specifically to the latter. The point is made by Mr Hopkins 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 information contained in it. The fact that disclosure of the record may be necessary in order to give effect to the entitlement to the information does not undermine the conceptual distinction between the record and the information and does not confuse the statutory entitlement to recorded information with an entitlement to the record. This point did not arise for consideration in the Glasgow City Council case, since there was not alleged to be any shortfall in that case between the information provided and the information contained in the record. As appears from paragraphs 50-51 of the opinion of the court, in relation to the question whether the information 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 information contained in the PECs was not materially different from the information contained in the copy notices requested, and the court declined to hear argument to the effect that the information 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.

[37]The Court of Session went on to hold that what had been requested was copies of the notices rather than the information contained in them, and that the Commissioner had erred in treating requests for copies as falling within the scope of section 1. Lord Reed stated:

“44. In the present case, the requests were for copies of statutory notices: in the terminology of the Act, copies of records containing information, rather than the information itself. The request was, at best, somewhat ineptly expressed. The request was however drafted by solicitors, and might therefore be expected to have specified exactly what was desired. Counsel for the second respondents confirmed that the requests had been drafted advisedly: it was indeed copies of the notices which were wanted, rather than the information which they contained and which might also be obtainable from other records. The Commissioner might have sought clarification of whether what was actually sought was copies of the notices, or the information contained in the notices, but did not do so. Instead, as counsel for the Commissioner confirmed in their submissions, he proceeded on the basis that what had been requested was copies of the notices, that such requests fell within the scope of section 1, and that it would be insufficient for the first appellants to provide, in another form, the information which the notices contained. That approach was in our opinion mistaken.”

[38]At paragraphs 45-48, Lord Reed considered arguments advanced in support of the Commissioner’s approach. In rejecting a contention that it was inappropriate “to introduce such fine distinctions” when construing legislation of this kind, he said that public authorities can only perform their duties under the Act correctly if they understand what information is requested. A separate argument that a record of information is itself “information”, so that if there are different records there are necessarily different items of information, was rejected on the basis that the concept of “information” is independent of the particular form or forms in which information may be recorded: for example, an electronic file and a hard copy of the file each records the same information, in a different form. Lord Reed added:

“48. It is of course true that some records containing a given item of information may be more valuable for certain purposes than others. An original of a deed, for example, is often preferable for forensic purposes to a photocopy. It can even be said, in a certain sense, that the original deed is a source of information which cannot be found in the copy: information, for example, that the signature and the body of the deed originally formed part of a single document (whereas a photocopy might have been created by bringing together a signature and a deed which had originated in separate documents). Information of that nature is not however ‘recorded’ in the original deed, but may rather be inferred from its physical characteristics. It is not, therefore, ‘information’ within the meaning of the Act. The difference between the original and the copy, in other words, does not consist in any difference between the information recorded in each document: that information, if the copy is complete and accurate, will be identical.”

[39]Whilst on a superficial view paragraphs 44-48 of the opinion might be thought to give support to IPSA on the present issue, in reality they provide no such assistance. In this case, by contrast with the Glasgow City Council case, the Commissioner interpreted the request not as a request for copies of the invoices rather than for the information contained in them, but as a request “for all of the recorded information contained within the three receipts/invoices” (paragraph 17 of his decision); and his reasoning in relation to the provision of copies was simply that there had been a shortfall in the information communicated and that IPSA needed to provide him with copies of the documents in order to remedy the shortfall and communicate all the recorded information to which Mr Leapman was entitled. Nor is it suggested that the Commissioner ought to have interpreted the request differently, as a request for copies of the documents rather than for the information contained in them: the only point taken as regards the interpretation of the request is IPSA’s contention, considered and rejected later in this judgment, that it ought to have been interpreted as expressing a preference for an opportunity to inspect the originals. It follows that the reasoning in paragraph 44 of the opinion delivered by Lord Reed has no purchase on this case. Similarly, paragraphs 45-48 of the opinion are addressed to arguments that are not advanced in this case, including in particular the argument that a record of information is itself information. Thus it was that Mr Hopkins, for the Commissioner, did not take issue with Lord Reed’s analysis but submitted, in my view correctly, that it did not assist on the specific question with which we are concerned in this appeal.

[40]Mr Coppel QC, on behalf of IPSA, submitted that the approach of the Commissioner in the present case, as upheld by the tribunals, blurred the distinction between recorded information and the medium or record on which the information is recorded. He sought to distinguish the “presentational elements” of recorded information from the recorded information itself, arguing that they constitute the form in which information is recorded, not the information itself, and that information derived from the form in which information is recorded is not the same as recorded information. Within “presentational elements” he included physical properties of the medium on which information is recorded, such as the weight of paper or watermarks within the paper, as well as more obviously presentational matters such as calligraphy, font, ink colour and layout. He accepted that “it is possible, if somewhat unusual, for an attribute which is normally only presentational to be used linguistically so as to convey a recognised meaning”, e.g. where red ink is used to convey negative numbers and black ink positive numbers, or where colour represents amendments to an original such as a pleading, or where words and/or figures and/or symbols (such as a tick) are concatenated to convey meaning (paragraph 46 of his skeleton argument). He submitted, however, that there is nothing “linguistic” in the appearance of the information covered by Mr Leapman’s request.

[41]The dividing line between the record itself and the information recorded on it may not be susceptible of precise definition, but it is not difficult to identify examples falling either side of it. I accept that the physical properties of the medium on which information is recorded, such as the weave or weight of paper or the technical specifications of the medium on which an electronic copy of a document is stored, are features of the record itself, not of the recorded information, and fall outside the scope of section 1(1). An obvious example on the other side of the dividing line is that of the words and figures transcribed by IPSA from the invoices that were the subject of Mr Leapman’s request: nobody doubts that they were recorded information. The material in dispute in this case is plainly closer to the dividing line but in my view it was rightly found by the Commissioner and the tribunals to fall on the recorded information side of that line. It seems to me that the following considerations are of particular importance.

[42]First, the issue relates to what appears on the face of the invoices – a logo/letterhead, a manuscript name or comment, and the layout, style and design of the invoice. The resolution of the issue must be the same, irrespective of whether one is considering the original document or a photocopy or a copy held in electronic form. Nothing turns on the properties of the record itself or the form in which the document is held.

[43]Secondly, Mr Coppel’s concession that “presentational elements”, as he termed them, can sometimes constitute recorded information shows that such elements cannot be dismissed as falling automatically on the “record” side of the dividing line and that an assessment must be made on the facts of the particular case. Here, an assessment in respect of the three specific invoices was made by the Commissioner and his decision was upheld by the tribunals.

[44]Thirdly, the reasons given by the Commissioner for finding that the invoices contained information over and above that included in IPSA’s transcripts are in my view convincing. In so far as those reasons relate to the three categories in dispute (logos and letterheads, handwriting/manuscript comments, and layout, style and/or design of a document), I have set them out in full at paragraph 23 above and I do not repeat them here. The court has seen copies of the invoices themselves, which are the subject of an order that they are not to be disclosed without the permission of the court. The material to which the Commissioner refers can properly be regarded as “information” in a broad sense. It is informative. It does not need to be “linguistic” in character for that purpose: “information” includes visual as well as linguistic information. For example, the design of a logo or letterhead, or the style or layout of an invoice, constitutes information relevant to the identity of the supplier and to the genuineness of the document; and, as the Commissioner said, what a person’s signature looks like is information over and above the person’s name.

[45]The fact that material is capable of informing an inquiry into the genuineness of a document is in my view relevant to the assessment of whether it constitutes information. I should, however, stress that the utility of a document for the purposes of forensic inquiry is not the touchstone of entitlement under section 1(1) (see, for example, paragraph 48 of the opinion delivered by Lord Reed in the Glasgow City Council case) and that the actual motive or purpose of the applicant in making the request for information is irrelevant: as Mr Coppel put it, the entitlement to information is generally “purpose blind”. But I do not think that the Commissioner or the tribunals fell into material error in what they said about the use to which the additional recorded information contained within the invoices might be put.

[46]Mr Coppel 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 information 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 information 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.

[47]Mr Coppel also submitted that the Commissioner’s approach would lead to absurd consequences, though his argument was based more on the particular reasoning of the Upper Tribunal than on the contents of the Commissioner’s decision notice. He suggested that situations might arise where the wording in a record would all be exempt from disclosure but the presentational aspects of the information, shorn of the wording, would not be exempt information; in which event it was not clear how the public authority could meet its obligation to communicate the presentational aspects alone. I regard that as an artificial concern. It would be for the public authority to decide on the particular facts whether a record contained information additional to the exempt information and, if so, what were the reasonable means of disclosing it. It has not been shown that the Commissioner’s approach would give rise to any insuperable problems.

[48]In conclusion, I am satisfied that the Commissioner’s approach to this issue was legally correct and that the conclusion he reached on it was properly open to him. I agree with the Upper Tribunal that the decision of the First-tier Tribunal was in reality an affirmation of the Commissioner’s decision and that it was not based on any material error of law. Issue (2): were the means of communication adopted by IPSA sufficient to comply with Mr Leapman’s request?

[49]The finding that IPSA failed to communicate recorded information to which Mr Leapman was entitled might be thought to be dispositive of the case against it. Mr Coppel submitted, however, that IPSA had communicated information by means that satisfied the requirements of section 11 and had thereby fulfilled its duty in respect of Mr Leapman’s request even if there was a shortfall between the information communicated and the information to which Mr Leapman 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]Mr Coppel’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 public authority.

(2) The correct meaning of a request for information is a question of law. On the proper interpretation of his request, Mr Leapman 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) IPSA was entitled to determine that it was not reasonably practicable to give effect to that preference, having regard to “all the circumstances, 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 information.

(4) If it was not reasonably practicable to give effect to Mr Leapman’s preference, it was open to IPSA, 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 IPSA satisfied that provision.

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

(6) Accordingly, IPSA satisfied the requirements of section 11, and by so doing it fulfilled its duty in respect of Mr Leapman’s request even if the means of communication adopted resulted in a diminution or shortfall in the information communicated, as compared with the information to which Mr Leapman 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 Mr Coppel. The duty correlative to the section 1(1) entitlement is inherent in section 1(1) itself. Just as the person making a request for information has a two-fold entitlement under the subsection, namely(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to him; so the public authority to which the request is made has a correlative two-fold duty, (a) to inform the person in writing whether it holds information of the description specified in the request, and (b) if that is the case, to communicate that information to him. That the subsection imposes a duty on the public authority is clear from related provisions of the statute. For example, section 1(3) provides that where a public authority reasonably requires further information in order to identify and locate the information 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 information”. By section 1(5), “a public authority is to be taken to have complied with subsection (1)(a) in relation to any information if it has communicated the information to the applicant in accordance with subsection (1)(b)”. By section 1(6), “in this Act, the duty of a public 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 public authority “has failed to communicate information, 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 information 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 public authority is obliged to comply, to communicate the information to which the person requesting it is entitled, and 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 subject 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 public authority where, on making the request for information, the applicant expresses a preference for communication by any one or more of the means specified. The public 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 public authority may, by section 11(4), comply with the request by communicating information by any means which are reasonable in the circumstances. That provision gives the public authority a discretion as to the means by which the information required by section 1(1) is communicated, but it does not empower the public authority to communicate less information 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 information communicated and the information to which the person is entitled under section 1(1), the public 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 information that a public authority is obliged to disclose. (I accept that the Commissioner was wrong to state, in the same paragraph of the decision notice, that the application of section 11 is limited to cases where the applicant has expressed a preference for a particular means of communication: section 11(4) has a wider scope. But nothing turns on that error.)

[55]In those circumstances there is strictly no need to consider Mr Coppel’s further arguments under section 11. Like the tribunal, however, I will go on to deal with them for the sake of completeness.

Whether Mr Leapman expressed a preference for inspection of the original documents

[56]As to the question whether, on making his request for information, Mr Leapman expressed a preference for an opportunity to inspect the original documents, within section 11(1)(b), Mr Coppel submitted that the Upper Tribunal fell into error in treating the interpretation of the request as a question of fact rather than of law (see paragraph 13 of its determination). He pointed out that by section 8(1) a request for information has to be in writing; he submitted that there is only one correct meaning to a document, citing for that purpose the observations of Diplock LJ in the libel case of Slim v Daily Telegraph Ltd

[1968] 2 QB 157

at 171G-172C; and he drew on the principles of interpretation of contractual documents as summarised by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society

[1998] 1 WLR 896

at 912G-H, in particular that “[i]nterpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”.

[57]I have no difficulty with the proposition that the interpretation of a written request depends on the objective meaning of the words used, read in their context and in the light of relevant background facts. But I do not think that one should approach the matter as if one were construing a contract or determining whether a document is defamatory. Although requests must be in writing, they may be relatively informal in character. As Lord Reed observed in the Glasgow City Council case, at paragraph 45, they may be made by individuals “who cannot be expected to express themselves with precision”. If a public authority is in doubt about what is being requested, it can and should seek clarification, pursuant to its duty under section 16 “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”. On a complaint to the Commissioner under section 50, the Commissioner will make his own assessment of the scope and effect of a request. On an appeal under section 57 against a decision notice issued by the Commissioner, the First-tier Tribunal is not limited to determining whether the notice was in accordance with the law but may review any finding of fact on which the notice is based, though it is true that any further appeal is limited to a point of law.

[58]In those circumstances I am inclined to treat the interpretation of a request as a question of fact rather than of law, or at least to treat it as a mixed question of fact and law. But the categorisation of the question as one of fact or of law is of limited practical significance and would make no difference to the outcome of this appeal even if section 11 were in play. I therefore think it unnecessary to address a further submission advanced by Mr Hopkins, on the basis of Moyna v Secretary of State for Work and Pensions

[2003] UKHL 44

[2003] 1 WLR 1929

, paragraphs 20-28, that even if the interpretation of a request is categorised as a question of law an appellate court should not interfere unless the decision under appeal fell outside the bounds of reasonable judgment.

[59]In this case the First-tier Tribunal found at paragraph 27 of its determination that what Mr Leapman was requesting was copies of the three invoices, subject to redaction of exempt material; he was not requesting an opportunity to inspect the original documents. That finding must be read subject to the proviso that, as the Commissioner found, the request for copies was in substance a request for all the recorded information contained in the invoices. In my judgment there is then no basis for interfering with the finding even if the question is treated as one of law. It is striking that IPSA itself understood the request as a request for copies rather than as an expression of preference for an opportunity to inspect the original documents. That was its position both in its reply to the request and at the time of the proceedings before the Commissioner. Only later, by amendment to its grounds of appeal to the First-tier Tribunal, did IPSA change its position, so as to argue that the request was to be understood as expressing a preference for an opportunity to inspect the original documents. Whatever the motivation for the change (the First-tier Tribunal described it as “a tactic designed to support the appellant’s claimed reliance on s.11 FOIA”), I take the view that the original position was the correct one.

The meaning of “in all the circumstances” in section 11(2)

[60]The other issue arising under section 11 concerns the provision in subsection (2) that in determining whether it is reasonably practicable to communicate information by particular means, a public authority may have regard to “all the circumstances, including the cost of doing so”. In its case before the tribunals, IPSA sought to rely on circumstances going beyond those specific to the individual request. As Mr Coppel summarised them in his skeleton argument, they were that(1) IPSA would wish to treat equally any applicant who makes a request in similar terms to Mr Leapman’s request;

(2) it anticipates that numerous requests in similar terms are likely to follow Mr Leapman’s lead;

(3) it receives invoices and receipts, together with other hard copy documents in support of claims, at the rate of 10,000 to 15,000 claims per month, and their layout and the exempt information that they hold differ in kind and location;

(4) it is anxious to avoid inadvertent disclosure of exempt information (in particular, personal data), both from the point of view of third parties and from the point of view of IPSA’s reputation;

(5) it already has much of the information held electronically on its database, so as to make easy and economic provision to an applicant without fear of disclosing exempt information; and

(6) in carrying out its functions, it has a statutory obligation under section 3A(l1) of the Parliamentary Standards Act 2009 to act in a way which is efficient, cost-effective and transparent.

[61]The First-tier Tribunal rejected that line of argument, holding (at paragraph 28) that section 11(2) allows regard to be had only to the circumstances of a particular application. The Upper Tribunal reached the same conclusion, holding (at paragraph 39) that section 11 is to be read with sections 12 and 13, which relate respectively to an exemption, or the power to charge, where the cost of compliance exceeds the appropriate limit, and that the provisions of all three sections are request specific. The tribunal saw nothing in the provisions “that crosses from consideration of a specific request to consideration of all requests, even less to the more speculative question of likely or possible requests”.

[62]Mr Coppel submitted that the approach of the tribunals was too narrow and that “all the circumstances” should be given a wide meaning, sufficient to engage the considerations upon which IPSA seeks to rely in this context.

[63]In my view, “in all the circumstances” means what it says. It refers to all the circumstances, and I see no justification for limiting it to the circumstances of the individual request. It is apt to include everything capable of affecting the reasonable practicability of communicating information by particular means. It is wider in scope than sections 12 and 13, which focus on the costs of complying with the specific request. Mr Hopkins did not seek to uphold the narrow approach of the tribunals but submitted that the determination of reasonable practicability must be based on solid evidence relating to the time of the specific request, whereas IPSA’s evidence about the future impact of meeting Mr Leapman’s request for disclosure of copies of the three invoices did not go beyond speculative assertion. The dispute between the parties can therefore be seen to have resolved itself into an issue about the sufficiency of the evidence rather than an issue of principle. We need not concern ourselves on this appeal with the evidential issue. It suffices to deal with the issue of principle, as to which I would hold that the tribunals took an unduly narrow approach to the expression “in all the circumstances” in section 11(2) but that, as I have already made clear, this had no effect on the outcome of the appeals and was not a material error of law.

Conclusion

[64]For the reasons given, I would dismiss the appeal.

Lord Justice Ryder :

[65]I agree.

The Master of the Rolls :

[66]I also agree.

Cited in 12 later judgments

and 3 more of the most senior