Walawalkar v The Information Commissioner and Maritime and Coastguard Agency: [2025] UKUT 105 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Wright on 25 March 2025.
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Judicial Summary
This appeal is about a request for information (distress calls from people at sea) which was held in audio form by the second respondent. The appellant argued that the information could be transcribed and that would amount to his preferred means of having the information communicated to him under section 11(1) of the Freedom of Information Act 2000 (FOIA). Other, and logically prior, grounds for refusing the request had been relied on by the Maritime and Coastguard Agency (MCA), but at the Information Commissioner and First Tier Tribunal (FTT) stage the focus was solely on section 11(1) of FOIA (in relation to transcripts of the audio calls). The MCA was required to give effect to the appellant鈥檚 preferred means of communication 鈥渟o far as reasonably practicable鈥� under s.11(1). The appellant argued that this involved a 鈥榮liding scale鈥� test of providing transcripts of at least some the information requested up to the point that it was no longer reasonably practicable for the MCA to do so.
The decision rejects this argument. It holds that section 11(1) involves an 鈥榓ll or nothing鈥� test which involves asking if it was reasonably practicable for the MCA to provide all of the information in the preferred means (i.e. transcripts of all the audio calls falling within the request). The ICO had applied an 鈥榓ll or nothing鈥� approach and the FTT, although its reasoning was perhaps less than clear, therefore made no material error of law in dismissing the appellant鈥檚 appeal against the ICO鈥檚 decision.
The decision also comments on the correct order of adjudication of issues under FOI, and suggests that section 11 should only be considered if and when no exclusion or exemption applies to the information under FOIA. The decision in addition rejects an argument that the preferred means of communication under section 11(1) of FOIA is relevant to whether information is held for the purposes of section 1 of FOIA. The latter is a logically prior and separate issue under FOIA.