JUDGE A. MARKS CBEMEMBER K. GRIMLEY EVANSMEMBER H. ANDALL
Between
Keith KENNAUGHAppellantTHE INFORMATION COMMISSIONER FirstRespondentTHE CABINET OFFICE SecondRespondentKeith KENNAUGHAppellantTHE INFORMATION COMMISSIONER First RespondentTHE CABINET OFFICE Second RespondentThe Appellant: represented himself for First Respondent: Kate Barratt, Paralegal for Second Respondent: Aaron Moss, CounselDecision: The appeal is dismissed.REASONS
Introduction
[1]This is an appeal against a Decision Notice issued by the Information Commissioner on 16 January 2025 under reference IC‑334851‑W0W6.[2]The appeal concerns a request made under the Freedom of Information Act 2000 ("FOIA") by the Appellant ("KK") to the Cabinet Office ("the CO") seeking records of the decision by the United Kingdom ("UK") to leave the European Union ("EU").[3]KK's request dated 11 March 2024 (made to the CO via the WhatDoTheyKnow website, under the heading "Can we see the minutes of the meeting where the decision to leave the EU was made?") read:
"The judgment of the Supreme Court was that the referendum on the EU was not a decision, however the European Union Notification of Withdrawal Act was passed on the basis of "
A decision already made". (See European Union (Notification of Withdrawal) Bill - Hansard - UK Parliament). It follows that the decision must have been made by the government, or unilaterally by the prime minister. If it was the government then it must have been made in a cabinet meeting, and the minutes of that meeting will be recorded, else if it was made by the prime minister alone, then they should have put their reasons on record. Please provide a copy of these records, or if there are no records, then please confirm which prime minister made the decision."[4]On 12 March 2024 the CO sought clarification as to whether the request concerned who made the decision to hold a referendum or who took the decision to leave the EU. KK clarified that he was interested in the latter.[5]On 13 March 2024 the CO responded that the request was not a valid request for recorded information under FOIA, explaining that FOIA does not require public authorities to create new information or to provide opinion or explanation in order to respond to a request or query.[6]On the same day, KK requested an internal review.[7]On 4 July 2024, there was a change of government following a general election.[8]On 8 August 2024, the CO provided a fresh response. It refused the request under section 12(2) FOIA because the request was premised on a single decision, when in fact there had been numerous decision points across Government.[9]On 11 August 2024, KK responded to the CO's response which the CO treated as a request for an internal review to which it replied on 16 September 2024 upholding its reliance on section 12(2) FOIA.
Complaints to the Commissioner and Decision Notices
[10]Following a complaint to the Commissioner on 22 September 2024, Decision Notice IC‑300094‑P9Q7 was issued on 3 October 2024. The Commissioner concluded that the CO was not entitled to rely upon section 12(2) FOIA because that exemption only applies if the cost of establishing whether information of the description specified in the request is held would be excessive. In this case, it was apparent that information falling within the scope of the request was held, even if its precise extent was uncertain. The Commissioner required the CO to issue a fresh response.[11]On 1 November 2024 the CO issued a further response relying instead upon section 12(1) FOIA. It explained that complying with the request would require searches across archival paper records and electronic material relating to numerous stages in the United Kingdom’s withdrawal from the EU. The CO estimated that at least 58 hours of work would be required for the paper records alone.[12]The same day, KK emailed the Commissioner, complaining about the CO's new response and asking if he needed to seek another internal review. Given the previous interactions between the parties, on 29 November 2024 the Commissioner confirmed that there was no need to seek an internal review: the Commissioner accepted the case for investigation.[13]Following investigation, on 16 January 2025 the Commissioner issued Decision Notice IC‑334851‑W0W6 ("DN") and, in error, on 17 January 2025 another decision notice IC-346971-J1K5 addressing KK's same request.[14]In the DN, the Commissioner accepted that the CO's explanation that the decision to exit the EU was taken at multiple levels in Government, including Parliamentary processes, and as a result there is no one document, nor series of documents that would comprise recorded information on ‘the decision’ to leave the EU.[15]The Commissioner further accepted the CO's explanation that, in light of this context, to comply with the request it would need to consider all of the stages and levels of Government involved in the decision. This would require the CO to carry out a search for all information that included a reference to the decision to leave the EU, including searches across its archival records and its electronic records to identify any information in scope.[16]To review all archival (paper) records and determine if information within scope was held, the CO said would take 41 hours and a further 17 hours to review the records, amounting to 58 hours activity in total. The Commissioner accepted the validity of this 58-hour estimate on the basis of the volume of files needing to be searched: he further considered that the scope of the request was wide enough to warrant the level of searches the CO had detailed.[17]While acknowledging KK's point that the decision to leave the EU was a significant one, the Commissioner considered that this supported the CO's position that it holds a significant amount of information regarding it.[18]The Commissioner concluded that section 12(1) FOIA was engaged.[19]On procedural matters, the Commissioner concluded that the CO had complied with section 16 FOIA (by providing advice and assistance to KK as to how his request might be refined) but had failed to comply with section 10(1) FOIA (because it had not issued a lawful response within 20 working days of receipt of the request). The Commissioner did not require any further steps to be taken.[20]On 22 January 2025 KK appealed against the DN to this Tribunal.[21]On 24 January 2025, KK informed the Commissioner of his appeal and asked if the decision notice ending J1K5 was a mistake as it deals with the same request.[22]On 29 January 2025, the Commissioner confirmed that such decision notice was indeed a duplicate and there was no need to appeal it as the DN has the same outcome.
The LawSection 1(1) FOIA:general right of access to information held by public authorities
[23]Section 1 FOIA provides a general right for a person to be informed by a public authority whether it holds the recorded information requested and, if so, to have it communicated to that person, subject to exemptions.
Section 12 FOIA: exemption where cost of compliance exceeds appropriate limit
[24]Section 12(1) FOIA allows a public authority to refuse to comply with a request where the authority estimates that the cost of compliance would exceed 'the appropriate limit'.[25]Under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 ("the Fee Regulations"), Regulation 3 states that the appropriate limit for any government department is £600.[26]The Fee Regulations set out at Regulation 4(4) that the cost of time which an authority expects to spend dealing with a request must be estimated on the basis of £25 per hour. Thus, the maximum time estimate without exceeding the appropriate limit is 24 hours.[27]Section 12 FOIA is not subject to a public interest test: if complying with the request would exceed the cost limit, there is no requirement under FOIA to consider whether there is a public interest in disclosure of the information.
Sections 57 and 58 FOIA: The role of the Tribunal
[28]Section 57 FOIA entitles either the requester or the relevant public authority to appeal to this Tribunal against the Commissioner’s decision notice.[29]Under section 58 FOIA, if the Tribunal considers that the decision notice was either wrong in law or, to the extent that the notice involved an exercise of discretion by the Commissioner he ought to have exercised it differently, the Tribunal shall either allow the appeal (or substitute the decision notice) or dismiss the appeal.[30]The Tribunal can also review any finding of fact on which the decision notice was based.
Evidence
[31]The Tribunal was provided with an Open Bundle of 193 pages (including indexes) which included the DN; KK's grounds of appeal; the Commissioner’s response; the CO's response; correspondence exchanged during the Commissioner's investigation; and a witness statement from Roger Smethurst (a senior civil servant holding the position of Departmental Records Officer for the CO and its Head of the Government Knowledge and Information Management profession). Submissions The Commissioner's response to KK's appeal[32]The Commissioner relied on the DN and submitted, in summary that(a) the CO had reasonably interpreted the request as relating to records concerning the UK's withdrawal from the EU rather than a single identifiable decision.(b) the CO had provided a reasonable estimate demonstrating that compliance would exceed the appropriate cost limit.(c) KK's grounds of appeal disclosed neither an error of law nor any basis for disturbing the Commissioner's conclusions. The CO's
Submissions
[33]The CO submits in summary as follows:(a) the request seeks records of “the decision to leave the EU”, but the CO and officials involved in the Brexit process are unaware of any single, standalone decision by which the UK decided to leave the EU.(b) the request was ambiguous because it relies on references by the Secretary of State to a “decision", namely the referendum result. To the extent the request sought records of that decision, they are already in the public domain because the “decision” was the vote of the electorate.(c) KK has focused on what information he believes ought to exist rather than information the CO actually holds: KK's insistence that there must have been a single binary decision does not reflect the reality of Government decision‑making which involved discussions, decisions and processes at multiple levels.(d) the Parliamentary motion passed on 7 December 2016 is evidence that it was already Government policy to leave the EU and to trigger Article 50: the motion recognised the referendum outcome, called for publication of the Government’s plan, and called on the Government to invoke Article 50 by 31 March 2017, demonstrating a continuing policy process rather than a single discrete decision.(e) due to the ambiguity of the request, the CO reasonably interpreted it as seeking information about the range of Governmental decisions and actions taken between the referendum and the Article 50 notification in March 2017.(f) identifying material falling within the CO's interpretation of the request would require extensive searches exceeding the section 12 cost limit.(g) the CO adopts the Commissioner’s submissions in full, maintaining that section 12(1) FOIA was correctly applied.
KK's Submissions
[34]KK submits in summary that:(a) the case turns on a simple question: if the CO holds no record of a decision to leave the EU, it should have responded that no information was held. The absence of any recorded decision is itself constitutionally significant and points towards the existence of an identifiable decision.(b) the Supreme Court ruled that the referendum was not, in law, a decision to leave the EU. The CO's suggestion that there were multiple decision points between being undecided and deciding to leave is incoherent because there is no explanation of what those intermediate decisions were.(c) the only explanation consistent with the known facts is that there was no original legal decision to leave the EU and that the European Union (Notification of Withdrawal) Act retrospectively transformed the referendum into the operative decision.(d) the CO's reliance on the December 2016 Parliamentary motion referring to “the decision of the British people” is wrong because it was based on a misunderstanding of the referendum’s legal status which was not itself a decision to leave the EU.(e) evidence from the CO's witness is that it was government policy to leave the EU following the referendum, implying in a government decision must have been made.(f) the CO has confused the decision to leave with later decisions about implementation, negotiations and timing, and that searches were directed at post-decision activity rather than the decision itself.(g) the CO's handling of his request was poor, with unnecessary requests for clarification, inadequate responses, and inaccurate statements. Discussion and decision The facts
Discussion and decision
[35]The Tribunal first considered the relevant facts of this case. Based on the evidence adduced, the Tribunal has made the following findings of fact, none of which are disputed: (a) the chronology of relevant events around the UK leaving the EU was as follows: i. 23 June 2016 - the Brexit referendum took place with a majority vote in favour of leaving the EU; ii. 24 June 2016 - David Cameron announced his resignation as Prime Minister ("PM"), having campaigned for the UK to remain within the EU; iii. 13 July 2016 - David Cameron left office as PM and Theresa May succeeded him; iv. 7 December 2016 - the House of Commons agreed a motion which recognised that it was Government policy to leave the EU; called for publication of a plan for leaving the EU before Article 50 was invoked; and called on the Government to invoke Article 50 by 31 March 2017; v. 24 January 2017 - the UK Supreme Court ruled that it was unlawful for the Government to trigger Article 50 of the Treaty on European Union using the Royal Prerogative: instead, it needed to obtain statutory authority from Parliament. The court acknowledged that both parties to the litigation accepted that the referendum result was not itself a legal decision by the UK to withdraw from the EU and that the European Union Referendum Act 2015 did not itself authorise notification under Article 50. vi. 31 January 2017 - a week after the Supreme Court ruling, David Davis (Secretary of State at DExEU) moved the EU (Notification of Withdrawal) ("EUNoW") Bill in the House of Commons, saying the Bill responded directly to the court's judgment. He said that the Bill sought to honour the commitment the Government had given to respect the outcome of the referendum by enabling Parliament to empower the Government to "implement a decision already made" to leave the EU:
"a point of no return [had] already passed."
Clause 1(1) of the Bill conferred on the PM the power to notify the EU under article 50 of the EU treaty of the UK's intention to withdraw from the EU. vii. 16 March 2017 - EUNoW Act passed; viii. 29 March 2017 - formal notification to EU by the PM, under Clause 1(1) of the EUNoW Act, of the UK's intention to leave the EU; ix. 24 May 2019 - Theresa May announced her resignation as PM having failed to gain approval from Parliament for the proposed Withdrawal Agreement; x. 24 July 2019 - Theresa May left office as PM and was succeeded by Boris Johnson; xi. 29 October 2019 - Boris Johnson called a general election; xii. 12 December 2019 - general election held, returning Boris Johnson as PM; xiii. 31 January 2020 - UK formally left the EU with a transition period from 1 February 2020 until 31 December 2020 by which date terms of the UK's departure were agreed with the EU. (b) relevant officials in the CO and DExEU have no recollection of there being a single decision point as to the UK's exit from the EU. Rather, due to the referendum result, it was Government policy that the UK would leave the EU. Thereafter most work of DExEU and wider Government was how and when that would happen, priorities for withdrawal, future relationship negotiations and early-stage planning for "no deal". (c) there were also discussions in Cabinet, its relevant subcommittees and other decision-making structures about introduction of the Bill, amendments to it, seeking Royal Assent and when/how to trigger Article 50, all in the context of Government policy to leave the EU. (d) any information held by the CO related to the UK leaving the EU is held in the Prime Minister's records, the Cabinet and Cabinet Committee records, the records of the Cabinet Secretary, and the records from the Department for Exiting the EU ("DExEU") which were transferred to the CO when the department closed. (e) records in the CO are created and kept in a hybrid format, some being digital and others on paper as many ministers prefer to work from their Red Boxes. The CO archive therefore comprises both physical files and digital archives. (f) the CO follows a statutory Code of Practice,issued under section 46 FOIA and laid before Parliament on 15 July 2021, about the management of records. It also complies with the Cabinet Office Records Selection Policy published 29 December 2023. (g) searching the CO's paper files involves a physical process of looking up file titles within date ranges on a catalogue, recovering the paper files (each document consisting of an average of 250 sheets, often double-sided) from the archive then page-by-page scanning every document in each file to determine whether or not it is within scope of a FOIA request (a process taking 30-60 seconds per side). A week is the estimated time for someone to search the physical files relating to the UK leaving the EU. (h) in addition, to respond to the request would require a digital search using carefully selected terms to avoid too many or too few "hits": searching "Article 50" alone produced nearly 6000 hits. Such searches would need to cover all relevant parts of the organisation, then a review would be needed of each "hit" to establish whether the document was within scope of the FOIA request or not. The estimated time for such digital searches is 49.5 hours.
Is there an error of law in the Commissioner's DN?
[36]Having made the above findings of fact, the sole remaining issue is whether the Commissioner made any error of law in his decision. Since section 12 FOIA does not involve any public interest test, there was no need to - nor did the Commissioner - exercise any discretion in reaching his conclusion, hence the second limb of section 58 FOIA is not applicable in this case.[37]As a result of the evidence before it, the Tribunal does not accept KK's assertion that there "must have been" a binary decision by the Cabinet or the PM for the UK to leave the EU.[38]The Tribunal's interpretation of the evidence is that while the outcome of the referendum was not legally binding, the Government - and ultimately Parliament - effectively treated it as if it were. Consequently, following the referendum result, the Government adopted as formal policy the UK leaving the EU and thereafter took numerous steps to further its position of honouring the outcome. Thus the Secretary of State when presenting the EUNoW Bill stated that "a point of no return [had] already passed."[39]The legal effect of the Supreme Court's judgment was that statutory authority from Parliament was required before the Government could trigger the Article 50 notice to the EU of the UK's intention to leave. In the intervening months since the referendum, however, numerous preparatory steps had been taken, such that the EUNoW Bill was passed into law with a large majority.[40]On the basis that there was no single decision point for the UK to leave the EU but instead a series of decisions and actions based on the Government's post-referendum policy to leave, the Tribunal understands the CO's interpretation of the request and its reliance on section 12(1) FOIA in its response.[41]In short, the Tribunal concludes that:(a) with the benefit of hindsight, it might have been possible for the CO to have responded to KK that it did not hold the information - taking the request as framed (i.e. seeking records of a single decision) - because the request was based on the mistaken basis that (i) the Supreme Court ruled that the referendum on the EU was not a decision (in fact the parties themselves agreed that the referendum was not itself a legal decision to leave the EU) and that (ii) either the Cabinet or a PM must have made the (binary) decision to leave the EU; however(b) due to the CO's knowledge that there had in fact been numerous decision points between the outcome of the referendum and the passing of the EUNoW Act, the CO identified the likelihood of voluminous records relating more generally to the UK's withdrawal from the EU. The CO therefore invited KK to narrow the scope of his request but he declined to do so; and(c) the question for the Tribunal is not whether the CO could have adopted a different interpretation of the request. It is whether, on the interpretation it reasonably adopted, the Commissioner erred in concluding that section 12(1) was engaged. The Tribunal finds that he did not.
Conclusion
[42]For the reasons set out above, the Tribunal finds that the Commissioner’s DN was not wrong in law.[43]The appeal is therefore dismissed.[44]The CO invites the Tribunal to quash the Commissioner's duplicate decision notice dated 17 January 2025 reference IC-346971-J1K5. As that decision notice is not before the Tribunal, there is no jurisdiction for it to do so. Signed: Alexandra Marks CBEFirst-tier Tribunal Judge Date: 4 August 2026 45. (with formatting corrections 6 August 2026)