Malcolm Meerabux v The Information Commissioner [2022] UKFTT 242 (GRC)

Appeal Number: EA/2021/0285

[2022] UKFTT 00242 (GRC)

First-Tier Tribunal

(General Regulatory Chamber)

Information Rights

Malcolm Meerabux

Appellant:

The Information Commissioner

Respondent:

Date and type of Hearing: 13 th May 2022 on the papers.

Panel: Brian Kennedy QC, Naomi Matthews and Pieter De Waal

Between

Malcolm MeerabuxAppellant

The Information CommissionerRespondent

Date and type of Hearing: 13th May 2022 on the papers.Respondent

Panel: Brian Kennedy QC, Naomi Matthews and Pieter De WaalRespondent

Malcolm Meerabux as a Litigant in person through written submissions. for Appellant

Richard Bailey, Solicitor through written submissions. for Respondent

Decision: The appeal is dismissed

REASONS

Date 2022-05-27

[28]The Upper Tribunal in Kirkham v information Commissioner

[2018] UKUT 126 (AAC)

(“Kirkham”) provided a useful summary of the approach to take when considering the application of section 12 FOIA: “18. Two issues arise under Part I. The first is whether the authority made an estimate. This arises under section 12. If it did not make an estimate, it is not entitled to rely on the section, as the existence of an estimate is a precondition for the application of the section. If it did, the second issue is whether the estimate included any costs that were either not reasonable or not related to the matters that may be taken into account. This arises under regulation 4(3). Both issues focus on the authority, on how it holds the information, and how it would retrieve it.

[19]The first issue is entirely subjective to the public authority. That is the language of section 12; it is personal to the authority. The cost of compliance will be related to the way that the authority holds the information. This is consistent with Upper Tribunal Judge Markus’s analysis in Cruelty Free International v Information Commissioner

[2017] UKUT 318 (AAC)

. I agree with her that it does not matter if the way in which the information is held fails to comply with other legal obligations than FOIA. It might be otherwise if the authority had deliberately distributed the information in a way that would always allow it to rely on section 12. That is not the case here and it was not the case in Cruelty Free.

[20]The second issue contains an objective element. The issue arises under regulation 4(3) of what costs ‘a public authority … reasonably expects to incur in relation to the request’. The word ‘reasonably’ introduces an objective element, but it does so as a qualification of the costs that the authority in question expects to incur. The test is not a purely objective one of what costs it would be reasonable to incur or reasonable to expect to incur. It is a test that is subjective to the authority but qualified by an objective element. It allows the Commissioner and the tribunal to remove from the estimate any amount that the authority could not reasonably expect to incur either on account of the nature of the activity to which the cost relates or its amount. This mixture of subjective and objective elements is comparable to the approach taken to the interpretation and application of similar language in what is now regulation 100(2) of the Housing Benefit Regulations 2006.” Commissioner’s Decision Notice [9]. The Commissioner investigated the matter and held that the Trust was entitled to rely on section 12(1) FOIA. Further, the Commissioner was satisfied that there was no breach of section 16(1) FOIA. The Commissioner reached her decision on the following grounds: a) “There are 11 academies consisting of six secondary schools and five primary schools which are spread across a wide geographical area in the South East of England [DN §22]. b) Data about staff progression is held within individual personnel files and progression data of staff by ethnicity is not collated [DN §23]. c) Before September 2020 there was one member of staff at the Trust who undertook some central strategic functions across the Trust. This had increased to a small number of part-time staff since September 2020 [DN §24]. d) Individual personnel files relating to current and former employees are held by individual academies and not centrally [DN §25]. e) To locate the requested information would require each school to first identify the ethnicity of each member of staff both current and former. Each school could search an electronic database of current employees, but a search of every personnel file held by each school would need to be searched to determine the ethnicity of the person the file relates to [DN §26]. f) If either file, electronic or personnel, recorded the individual’s ethnicity as “black”, it would be then necessary to search through the entire file to find letters and other correspondence to understand the individual’s “employment and career pay scale advancement” [DN §27]. g) A manual search would also be required of recruitment application forms and monitoring information to determine the ethnicity of applicants and the success rate [DN §28]. h) The Trust’s primary schools have 23 staff members, and its secondary schools have 109 members of staff. Since the Trust’s formation in 2012 some members of staff have left, and recruitment has taken place [DN §30]. i) Accordingly, it could take between 17 and a half and 25 hours to search for the records at the primary schools, and between 24 and 36 hours to search for the records at the secondary schools. This equates to a figure between £1037.50 and £1525, both amounts being over the £450 threshold. Furthermore, staff located centrally at the Trust completed a sampling exercise in which they asked schools for electronic information relating to current employees and whether any other information could be provided. Carrying out the enquiries alone took approximately 30 hours [DN §31-32].” Grounds of Appeal [10]. The Appellant’s Grounds of Appeal detailed that the Trust has expanded his request for information when the request specifically related to the career development of black staff to deputy or head teacher roles. Specifically, the request did not ask for information relating to a fast-track scheme for promotion. The Appellant contended that the Trust has chosen a deliberate path which was not cost effective when a more direct route to the FOI would have produced the information – “a simple email to staff would have produced the answers”. The Appellant commented on the promotion of staff which he considered to be by virtue an extended SLT promotional ladder. The Appellant challenged the internal review process and remarked on how the Trust’s board answer equality questions. The Commissioner’s Response [11]. The Commissioner maintained her position as outlined in the DN and resisted the appeal. The Commissioner set out additional observations in respect of the Appellant’s Grounds of Appeal. The Commissioner noted that the onus is upon the Appellant to demonstrate that the Commissioner’s DN was not in accordance with the law. [12]. In response to the first ground of appeal, the Commissioner submitted that the issue to consider is whether or not a reasonably objective interpretation of the scope of the Appellant’s request is such that it solely covers promotion of black members of staff into the roles of deputy head and head teacher or whether it would cover any employment and career pay scale advancement. [13]. The Commissioner maintained that she is satisfied that the Trust correctly relied upon section 12 FOIA and that the Appellant’s arguments do not now go on to disturb this finding. The Commissioner did not consider that this ground has a reasonable prospect of success. [14]. The Commissioner referred to Kirkham v Information Commissioner

[2018] UKUT 126 (AAC)

, at [18], whereby the test for engagement of section 12 FOIA is provided: “18. Two issues arise under Part I. The first is whether the authority made an estimate. This arises under section 12. If it did not make an estimate, it is not entitled to rely on the section, as the existence of an estimate is a precondition for the application of the section. If it did, the second issue is whether the estimate included any costs that were either not reasonable or not related to the matters that may be taken into account. This arises under regulation 4(3). Both issues focus on the authority, on how it holds the information, and how it would retrieve it.

[2017] UKUT 318 (AAC)

[2014] UKUT 479 (AAC)

held as follows:

“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…it is not a statute that prescribes any organisational structure or record-keeping practice in public authorities.” [§37 & §42]. [16]. The Commissioner argued that she was correct in her findings and that the Appellant’s second ground of appeal does not have reasonable prospects of success. [17]. The Commissioner submitted that the Appellant advanced no argument of substance that challenges the finding in the DN, and the Commissioner invited the Tribunal to strike out the appeal under Rule 8(3)(c) or dismiss the appeal. The Hearing: [18]. The Tribunal Panel met on 13 May 2022 to consider the appeal, on the papers with the consent of the parties. On consideration and deliberation of the papers in the Open Bundle (“OB”) and the submissions before us we find the Appellant has failed to persuade us through the Grounds of Appeal that the Commissioner’s DN is not in accordance with the Law or that the Commissioner ought to have exercised her discretion differently. [19]. The Public Authority concerned; the Trust, provided an explanation that they are introducing steps to record ethnicity data centrally to aid the review of Trust policies and to ensure the Trust is meeting its equality duties and that they had, at the time of the request, no fast-tracking scheme for promotion. In the course of the Commissioner’s investigation the Trust explained their reliance on s12(1) of FOIA on the basis as set out in detail at Paragraphs 15, 16 & 17 of the Commissioner’s Response (dated 22 November 2021 at Page A26 OB) to the Grounds of Appeal. The Commissioner, reasoned correctly in our view, in finding that compliance by the Trust would exceed the appropriate limit, and it was therefore entitled to refuse to comply with the request under s12(1) of FOIA. [20]. Accordingly, we find the first Ground of appeal, (as set out at paragraph 18 a) of the Commissioner’s Response, dated 22 November 2021 (see Page A28 OB) has not been established and that the Commissioners record stands. [21]. The more substantive challenge arising from the Grounds of Appeal as has been identified at paragraph 18 b) at Page A28 OB) of the Commissioner’s Response dated 22 November 2021, vis: - “The Trust has chosen a deliberate path which was not cost effective when. more direct route to the FOI would have produced the information. A simple e-mail to staff would have produced the answers” - has in our view, been dealt with comprehensively in a letter dated 26 March 20212 to the Commissioners’ office from the Chief Financial Officer of the Trust (see Pages D106 to D107 of the OB. On consideration and deliberation of the contents therein, we find the Commissioner was correct to determine that the Trust has not chosen a deliberate non-cost-effective way of dealing with the request when the information could have been obtained by e-mailing staff and we accept and adopt the reasoning as set out in paragraphs 27 to 29 of the Commissioner’s Response dated 22 November 2021 (see pages from A29 – A30 OB). [22]. In relation to s16 FOIA, the Tribunal note that the DN states that the commissioner considers the Trust to have breached Section 1(1), section 10(1) and section 17(1). This is not a matter under consideration within this appeal. Whilst we agree with the Commissioner that S 16 was not breached (which provides a duty on the public Authority to provide advice and assistance) we find that there could have been more proactive attempts utilised by the Trust to try and further narrow the response. This would be with a view to try and bring the response under the cost limit. We refer particularly to the letter of 11 March (at D109 OB) where it could have been made clearer to the requester that they were attempting to find a way to narrow the request to bring it under the cost limit. They could have also explored whether redirecting the requester to each individual Academy could have been an option as is outlined in the ICO guidance on advice and assistance. [23]. S16 provides: 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. [24]. The applicable guidance in the Code at the time of the request (and still currently applicable) states: “Where it is estimated the cost of answering a request would exceed the “cost limit” beyond which the public authority is not required to answer a request (and the authority is not prepared to answer it), public authorities should provide applicants with advice and assistance to help them reframe or refocus their request with a view to bringing it within the costs limit.” (Our emphasis) [25]. At Paragraph 39 of the DN it is said: "The Commissioner does not consider the complainant's request could be meaningfully refined to allow the information to be provided within the cost limit. As such, she is satisfied that there was no breach of section [26]. We have considered some tribunal decisions where the tribunal did not agree with findings made by the Commissioner in relation to S16 compliance. In EA/2014/0217 (also a S12 case) the tribunal upheld the DN but expressed concern and made observations about the S16 compliance. The same approach was followed in EA/2009/0037. In EA/2016/0286 (also a S12 case heard by a panel including Judge Lane, Chamber President) it was held: “The decision notice is not in accordance with the law. We re-make the notice by substituting a finding that HM Treasury was in breach of its duty under section 16 to provide advice and assistance to the appellant. It should do so, not later than 42 days from the date of this decision”

. However, on balance we are of the view that the Commissioner has cannot be said to have erred in Law or in the exercise of her discretion as we have not been so persuaded. [27]. For all the reasons above we must dismiss this appeal. Promulgate date 27th May 2022