David Morris v The Information Commissioner [2025] UKFTT 376 (GRC)

[2025] UKFTT 00376 (GRC)Case Reference: FT/EA/2024/0353
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 19 February 2025Date 28 March 2025
Information Rights
Heard by Cloud Video Platform
Before
TRIBUNAL JUDGE THOMAS BARRETTTRIBUNAL MEMBER MARION SAUNDERSTRIBUNAL MEMBER PAUL TAYLOR
Between
DAVID MORRISAppellantTHE INFORMATION COMMISSIONERRespondentMr David Morris by CVP for AppellantWritten Submissions for RespondentDecision: The appeal is Dismissed. The public authority was entitled to rely on s. 12 of the Freedom of Information Act 2000 (“FOIA”). The public authority complied with its s 16 duty to provide advice and assistance.REASONS

Introduction

[1]This is an appeal against the Commissioner’s decision notice IC-279490-M7L5 of 13 August 2024 (“DN”) which held that the Department for Energy Security and Net Zero (“DESNZ“) is entitled to refuse the request in reliance on FOIA section 12(2).[2]The Commissioner found that DESNZ had complied with its section 16 duty to provide advice and assistance (See para. 42 of the Decision Notice). The Commissioner required no steps to be taken.[3]The proceedings were held by video (CVP). Mr Morris requested an oral hearing and attended by CVP. The Commissioner considered the appeal could be appropriately dealt with on the papers and so did not attend, instead relying on the contents of the written representations included in the bundle. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.

General Background

[4]On the 13th September 1991 Mr Morris had a serious industrial accident when he was working as a coal miner. He was subsequently unable to work and was paid various social security benefits as a consequence. Mr Morris obtained legal representation and made a claim against his employer at the time of the accident, the former British Coal Corporation (“BCC”).[5]Although liability was never conceded the case settled in 1996 when, whilst legally represented, Mr Morris accepted a settlement offer made to him through the method of a payment into court and the litigation was brought to a close without a trial being needed.[6]Under the law that applied at the relevant time compensation settlements were subject to a requirement that the compensating body (i.e. BCC here) may have to withhold from the settlement amount a sum equivalent to the amount of certain social security benefits that the injured person had received (i.e. Mr Morris here). When making the payment into court this could be done either gross or net of the relevant benefits to be deducted.[7]The settlement figure was calculated on the basis that it would include the benefit recovery amount, and so ultimately the amount to be received by Mr Morris would be a smaller sum (as it would be reduced by the relevant amount of benefits that had to be recovered). The proposed date for payment was 5 April 1996 and so a prospective ‘certificate of total benefit provided’ was obtained calculated up to that date which provided a total recovery amount of £30,768.18. At the relevant time the Appellant was still in regular receipt of relevant benefit payments and so the ‘total benefit provided’ was not a fixed sum in that it increased over time whenever the next relevant benefit payment was made.[8]On the 5 April 1996, had the settlement gone through on that day, the £50,000 paid into court would have been reduced by £30,768.18 so that Mr Morris would have received £19,231.82. Unfortunately, there was a delay to the payment, likely because the 5 April 1996 was Good Friday and therefore a Bank Holiday.[9]This delay meant that Mr Morris received a further benefit payment of £157.92, which in turn increased the total benefit recovery amount up by the same sum from £30,768.18 to £30,926.10. This would of course mean that in the normal course of events the amount Mr Morris would ultimately receive would be reduced by that same amount given the requirement to recover the benefits from the settlement sum. Mr Morris would normally have therefore received only £19,073.90 following the delay rather than the £19,231.82 expected on the 5 April 1996.[10]However, that is not what actually took place. Because in this case rather than the settlement amount remaining at the £50,000 amount originally contemplated, it was instead increased by the sum of £157.92 to a new figure of £50,157.92. Consequently, this increase to the settlement sum effectively nullified the increase in the benefit recovery figure arising due to the extra benefit payment made after the Good Friday delay. Mr Morris, when the settlement did go through, therefore still received the original amount expected of £19,231.82 as well as an extra social security benefit payment of £157.92 (because the amount of Benefit to be recovered had increased because of the delay and so the sum due to Mr Morris would have otherwise decreased to reflect that but for the increase in settlement amount). In previous Tribunal proceedings See Paragraph 19 of David Morris v. ICO EA/2017/0183 Heard on 14 December 2017 Mr Morris accepted in the hearing that he had not lost out as a result of this adjustment.[11]Following the settlement being actioned and Mr Morris receiving the £19,231.82 owed, there were a number of further substantive proceedings related to this payment but they are not relevant for the purposes of this appeal.[12]The discrepancy between the original settlement sum of £50,000 and the final settlement sum of £50,157.92 has unfortunately been a focal point for Mr Morris over many years. Leading him to believe that the discrepancy is evidence of a conspiracy and to feel considerable distress and concern as a consequence. However, neither the discrepancy nor Mr Morris’ personal sincere belief in a conspiracy have any relevance or bearing on the outcome of the present appeal.[13]Subsequent to the settlement of the case the liabilities of the BCC transferred to the Department of Trade and Industry (“DTI”) on 1 January 1998 and then to the successive departments, the Department of Business Enterprise and Regulatory Reform (“BERR”), the Department of Energy and Climate Change (“DECC”), the Department for Business Innovation and Skills (“BIS”), the Department for Business, Energy and Industrial Strategy (“BEIS”) and currently DESNZ.[14]Mr Morris has since 1998 been in substantial and regular correspondence concerning issues related to his accident claim with the various successor organisations to BCC, including by making numerous subject access and FOIA requests. This includes more than 38 subject access requests that have been processed by the successor organisations for Mr Morris since 2008. The various requests have often then engaged the Respondent (see for example the 2013 Decision Notice FS50463281 attached to the Decision Notice in this case) as well as led to more than one previous Tribunal decision (e.g. EA/2013/0072 and EA/2017/0183).

Request and Response

[15]On 14 July 2023, Mr Morris wrote to the public authority and requested information in the following terms:
“Under the FOIA please provide the information held in part of Legal Professional Privileges the Department sent to the ICO 2 & 3, however in a better way than in 4 & 5.”
[16]The references in the request to numbered items refer to:a. For both 2 & 3 - A letter from the ICO to Mr Morris dated 19 February 2009 regarding a complaint made to the ICO about BERR’s (a predecessor of DESNZ) handling of a Data Protection Act (DPA) 1998 Subject Access Request (SAR).b. Whereas 4 & 5 relate to a letter from the then Director General, Legal at BERR dated 11 April 2008 regarding an Internal Review for a FOIA request made by Mr Morris.[17]The Decision Notice sets out in Paragraph 6 that (brackets added):
“DESNZ interpreted the request to be for all the papers sent to the Commissioner in relation to a subject access complaint as referenced in the letter dated 19 February 2009 attached to [Mr Morris’s] request. DESNZ responded on 26 September 2023. DESNZ refused the request relying on FOIA section 12 – cost of compliance. DESNZ advised [Mr Morris] that they may wish to narrow the scope of the request but that any information found was likely to be covered by Legal Professional Privilege (“LPP”) and may be exempted from disclosure.”
[18]Mr Morris requested an internal review on 2 October 2023 and this was conducted. On the 30 October 2023 DESNZ replied providing its internal review that upheld the initial response refusing the request under FOIA s.12.

Complaint to the Commissioner

[19]On the 3 January 2024 Mr Morris contacted the Commissioner to complain about the handling and refusal of his request by DESNZ.[20]That complaint did not specifically address DESNZ’s reliance on s.12 to refuse the request which is the core issue here. Instead, Mr Morris complained about s.42 of FOIA (which was not relied upon by DESNZ) and sought to make novel legal arguments about hypothetical legally professionally privileged (LPP) advice (which also was not relied upon by DESNZ in their refusal). It is correct that in offering advice and assistance regarding narrowing the request of 14 July 2023, DESNZ advised the complainant that, if found, any information was likely to be covered by LPP. It is also correct that the internal review also references LPP. However, neither LPP nor s.42 played any operative role in the decision to refuse the request, which was wholly focused on the application of s.12 FOIA (and the related s.16).

The decision notice

[21]In a decision notice dated 13 August 2024 Ref. IC-279490-M7L5 (“the Decision Notice” / “the DN”) the Commissioner decided that DESNZ was entitled to refuse the request in reliance on FOIA s.12(2), and that DESNZ had complied with its obligations under s.16 FOIA to offer advice and assistance.[22]The Commissioner accepted that DESNZ had already spent 16 hours undertaking searches without completing the search process. It was also accepted that the interpretation of the request was a reasonable position to take as it was not specific about any particular document. In the circumstances where Mr Morris had made many SAR and FOIA requests over a number of years involving a number of different successor organisations, where information could be held in a variety of locations on different systems as well as in manual archives relating to multiple previous incarnations of the DESNZ department. The Commissioner accepted the explanations as to why further searches were required as reasonable and that to do the further searches would credibly take more than a further 8 hours.

The appeal to the tribunal

[23]Mr Morris appealed on the 27 August 2024.[24]The relevant grounds of appeal raised by Mr Morris in relation to the Decision notice can be summarised as:a. DESNZ estimate of search work undertaken and additional time needed is grossly excessive and the relevant documents could be obtained in “around 2 minutes” if the manual and electronic search facilities of DESNZ contracted archival company were used.b. The Decision Notice is incorrect in law as s.12(2) does not apply.

ICO response

[25]On the 10 October 2024 the Commissioner responded to Mr Morris’ appeal.[26]In relation to the ground of appeal raised by Mr Morris that the searches could have been completed under the cost limit the Commissioner sets out their belief that this ground can be dismissed because;a. The search would need to cover electronic records dating back to 1996 potentially held on different systems across various departments, record management systems, and legacy filing systems (paragraph 27).b. That the information requested relating to correspondence with the Commissioner would have been originally sent over 15 years ago with several machinery of government changes in the meantime. With the ability to identify the specific information in scope of the request and whether it was still held consequently being a significant challenge (paragraph 29).c. DESNZ conducted an initial search of the department’s electronic filing system and the FOI team were expressly asked to search their systems to try and identify the relevant documents (noting that like the Commissioner the DESNZ FOIA team operated a three-year retention period). Both failed to locate any further relevant information and so any further work to establish whether any information relevant to the request was held by DESNZ would require the trawling through of a significant amount of previous SAR requests and correspondence with Mr Morris (paragraph 30).[27]The Commissioner concludes that in their view DESNZ did provide a reasonable explanation of the searches and the search plan, such that they were satisfied that on the specific circumstances of this case they had demonstrated why the task of confirming whether the information was held would exceed the appropriate limit (paragraph 31).[28]In relation to the ground of appeal that the decision notice was wrong in law the Commissioner sets out that;a. Mr Morris’ ground is “unclear” and does not set out or demonstrate how the decision notice is wrong in law.b. The Commissioner conducted an appropriate investigation of DESNZ and their handling of the request. The Commissioner was satisfied with the explanations provided by DESNZ and submits he applied the correct test appropriately and explained his reasoning for his conclusions within the decision notice.c. The onus is on Mr Morris to demonstrate that the decision notice is wrong in law and/or how the Commissioner should have used his discretion differently, but the Grounds fail to identify either.

Reply by Mr Morris to the ICO Response

[29]On the 15 October 2024 Mr Morris replied in writing to the Commissioner’s response to the appeal.[30]The four-page document covers in length various arguments and points including the £157.92 discrepancy relating to the settlement payment as well as concerns regarding the alleged interchangeable use of FOIA and the Data Protection Act, the use of legal professional privilege and the FOIA exemption for Personal data.[31]It does not address the points made in the response other than a general statement in the final paragraph that “It is for the Tribunal to decide the question of whether the Commissioners DN paragraph 2 is correct, that the DESNZ were entitled to rely on section 12(2) and also whether under section 16 FOIA advice and assistance,”.

The relevant law

[32]The relevant provisions of FOIA are set out below: 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.(2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14. ... 12 Exemption where cost of compliance exceeds appropriate limit (1) Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit. (2) Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit.(3) In subsections (1) and (2) “the appropriate limit” means such amount as may be prescribed, and different amounts may be prescribed in relation to different cases. ... 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.[33]The “appropriate limit” under section 12(1) for DESNZ is £600 as per regulation 3(2) of the Freedom of Information and Data Protection (Appropriate Limits and Fees) Regulations 2004. Additionally, under Regulation 4(4) costs are to be estimated at the rate of £25 per person per hour. This means that the limit for DESNZ is exceeded after 24 hours of work by a single person.[34]Regulation 4(3) of those regulations sets out what work qualifies for the purpose of that estimate as follows:(a) determining whether it holds the information;(b) locating the information, or a document which may contain the information;(c) retrieving the information, or a document which may contain the information; and(d) extracting the information from a document containing it.[35]A public authority does not have to provide a precise calculation of the cost of complying with a request, only an estimate is required. However, the estimate must be sensible, realistic, and supported by cogent evidence (McInerny v IC and Department for Education [2015] UKUT 0047(AAT) para 39-41).[36]As stated by the Upper Tribunal in Kirkham v Information Commissioner [2018] UKUT 126 (AAC), paragraph 24; “An estimate involves the application of a method to give an indication of a result. In the case of FOIA, the result is whether the cost of compliance would exceed the appropriate limit (regulation 4(1)). It follows that the method employed must be capable of producing a result with the precision required by the legislation in the circumstances of the case. The issue is whether or not the appropriate limit would be reached. The estimate need only be made with that level of precision. If it appears from a quick calculation that the result will be clearly above or below the limit, the public authority need not go further to show exactly how far above or below the threshold the case falls.”[37]The appropriate limit is assessed on the basis of the information storage and retrieval systems that a public authority actually has - not the ideal systems, or the systems that an appellant thinks a public authority ought to have (See Commissioner of Police for the Metropolis v Information Commissioner and Mackenzie [2014] UKUT 0479 (AAC)).[38]The tribunal's remit is governed by s.58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner's decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

Issues and evidence

[39]The issues to be determined are:a. What was the scope of the request?b. Whether DESNZ was entitled to rely on section 12 FOIA (cost of compliance) to withhold the requested information. Has DESNZ provided a reasonable estimate that the cost of complying with the Request would exceed £600 representing 24 hours of work that is sensible, realistic and supported by cogent evidence?c. Did DESNZ comply with its duty under section 16 to provide advice and assistance?[40]By way of evidence and submissions we had the following, all of which we have taken into account in making our decision:a. A bundle of open documents, which includes the decision notice, the appeal, and responses amongst other documents.b. A closed bundle containing disputed information and confidential investigation information.c. Oral submissions from Mr Morris.[41]Mr Morris showed considerable stamina and dedication in addressing the Tribunal at length. He rapidly and repeatedly demonstrated an enviable mastery of the open documentation bundle by swiftly moving from document to document back and forth as he made his submissions taking the Tribunal through his points with care. We are grateful for his earnest and professional approach.[42]However, the majority of Mr Morris’ submissions focused on matters not in issue in the case before the Tribunal. Such as the financial discrepancy in the compensation payment, various allegations of textual inaccuracy and/or falsification of records, and unsubstantiated assertions as to the character of particular individuals as well as to the inappropriate use and practice of Legal Professional Privilege and the FOIA s.40 personal data exemption.[43]Mr Morris did specifically clarify during the hearing that:a. His request was broader than just a single letter identified during the internal review on this request (which itself was previously the subject of an unsuccessful request by Mr Morris seeking release of that document, see paragraphs 45-50 of the DN). He stated his request was not just for that document, but also for all the legally professionally privileged documents sent to the ICO in relation to the previous subject access request he had made about that document.b. In line with his grounds of appeal, he set out his view that given DESNZ had a standing contract with a particular archiving firm who stored both digital and hard copy records for them making it possible to resolve the request “in 2 minutes” and so claims of exceeding the cost limit could not be reasonable. Discussion and conclusions

Findings of fact

[44]We make the following findings of fact based on the evidence before us on the balance of probabilities.[45]Mr Morris has, over several years, actively exercised his legal rights at scale, particularly in relation to FOIA and the subject access right under the Data Protection Legislation. This has inevitably created a significant volume of records and material that are associated both with Mr Morris and with previous requests he has made, which in turn span a period of many years. Consequently, the scope of this request is significantly more challenging and complex than would otherwise be the case.[46]Multiple machinery of Government changes took place between the time when the information sought was recorded and the date of the relevant request being considered here. In parallel there were numerous administrative and technical records systems changes that also took place creating a complex and varied data landscape. One part of which (but not all) is covered by the archiving firm that DESNZ has contracted with to store and process some particular categories of record.

The scope of the request

[47]In light of the evidence before us, and in particular what we heard from Mr Morris on this point at the hearing, we find that it would be appropriate to construe the scope of the request as being wider than a single document.[48]It was for an identified class of uncertain size relating to a period of activity taking place 15 years previously. The identified class being all the information held that was subject to Legal Professional Privilege which the Department had sent to the ICO in relation to a previous request, not just a specific letter.

Was the estimate sensible, realistic and supported by cogent evidence?

[49]We have considered the information provided by DESNZ in its response to the Commissioner. DESNZ has provided an explanation of why it believes the costs limit would be exceeded, due to the amount of work involved. This estimate is based on a partial attempt to collate this information.[50]The partial work consisted of:a. An estimated total of 10 hours of electronic searches undertaken on the departmental records management system looking for information within scope in the relevant period, as well as searches of personal email folders, correspondence and an unsuccessful attempt to access the relevant legacy electronic filing system.b. An unsuccessful attempt to search the FOI Team records for relevant material, which was unsuccessful because a retention period of 3 years applied to such records and the material sought significantly predates that.c. An estimated total of 4 hours of general searching undertaken by the Knowledge and Information Management Team across all of the Department’s records including historic archives using specific keyword and period specific search terms.d. An estimated total of 2 hours of additional searching carried out by Policy Officials using specific keywords and search terms relating to FOIA requests and the relevant period.e. Searches by DESNZ’s Deputy Data Protection Officer for correspondence relating to the relevant previous request amongst sizeable records of Mr Morris’ previous requests.[51]Having conducted the above work DESNZ was not yet able to conclude whether they did or did not hold the material that is in the scope of the request. In particular the archive searches produced thousands of results that needed further scrutiny and some of the information found by the Deputy Data Protection Officer indicated that there was likely to be multiple documents that were subject to LPP. DESNZ therefore took the view that in light of the partial work done, that to determine if they held the information that is within the scope of this request would exceed the £600 limit (i.e. 24 hours of work). Noting that the obligation is to provide all of the information that DESNZ hold which is within the scope of the Request.[52]The Commissioner accepted that DESNZ had already spent 16 hours undertaking searches, though we note it is likely that that figure is less that the actual total expended by DESNZ given some of the search work they set out was not attributed with a time estimate. The Commissioner further accepted that DESNZ adopted a reasonable search strategy and that in the context of these records and this request the further searches necessary would credibly take more than the further 8 hours allowed for by the cost limit.[53]Mr Morris does not accept the estimate provided or the Commissioner's decision about it. His overall position is that he believes DESNZ is not telling the truth in order to cover up what has happened and they could, in fact, easily provide the requested information well within the appropriate limit and so s.12 should not apply. Mr Morris has asserted that the request could be resolved simply by using the Department’s external archiving firm, but without providing any evidence as to why that is the only place that needs to be searched nor any evidence to contradict DESNZ’s partial work and additional estimate as being true, reasonable and realistic.[54]The records in scope of this request have a long, and uniquely complicated administrative history given the significant number of successor organisations the records have passed through (all the while steadily accruing further information). Given that history coupled with the total size of the material held over a significant period of time (where multiple systems were used), we accept that DESNZ is likely to have a better idea than members of the tribunal or Mr Morris of the most efficient way and places to search for information held by DESNZ.[55]It is clear that in this context and in relation to this particular request a simple, centralised search is not, in practice, possible and we accept that.[56]Taking all of the above matters into account, we find that DESNZ has provided a reasonable, sensible and realistic estimate that the costs of compliance would exceed 24 hours of work that is supported by cogent evidence (in particular the significant partial work undertaken).

Section 16 Compliance

[57]The Commissioner's DN at paragraphs 38 through to 44 considers DESNZ’s compliance with the requirement to provide reasonable advice and assistance to those making, or wishing to make, information requests. In particular by explaining to Mr Morris about how he might be able to refine his request so that is narrowed sufficiently to fall within the Cost Limit.[58]The DN notes that DESNZ initial response did specifically notify Mr Morris that he could consider narrowing the scope of his request to bring it within the cost limit. The Commissioner adds that they could not see on the basis of the information before them how in practice the request could be narrowed down. It also notes that following the request for the internal review the complainant did make more specific reference to a particular letter, but that DESNZ did not consider the more specific references to amount to a narrowing of the request to just that single letter. A point that was confirmed as being the correct interpretation by what we heard from Mr Morris in the hearing.[59]Mr Morris has not at any stage sought to argue that DESNZ breached s.16 FOIA, nor that the Commissioner in his DN on this point acted not in accordance with the law or should have exercised a discretion differently.[60]In the specific context of this request and given the particular scope applicable we accept that DESNZ provided reasonable advice and assistance and discharged their duty under s.16.

Conclusion

[61]Consequently, we find that DESNZ was entitled to rely on s.12 FOIA and were not in breach of s.16 FOIA. Therefore, we also find that the Commissioner’s DN was in accordance with the law and did not require any discretion to be exercised differently. We dismiss the appeal. The decision of the tribunal is unanimous. Signed Thomas Barrett Date: 27/3/25