Christopher Williams v The Information Commissioner

NCN: [2026] UKFTT 00682 (GRC) Case Reference: FT/EA/2025/0092 First-tier Tribunal (General Regulatory Chamber) Information Rights Decided without a hearing Decision given on: 6 May 2026 Amended by rule 40 15 May 2026 Before JUDGE HEALD MEMBER CHAFER MEMBER SIVERS Between CHRISTOPHER Williams Appellant and THE INFORMATION COMMISSIONER Respondent Decision: the appeal is dismissed REASONS

1. This decision relates to an appeal brought by the Appellant pursuant to section 57 Freedom of Information Act 2000. It is in respect of a decision notice issued by the Respondent on 5 February 2025 with reference IC-341904-K4C9. It concerns a request for information made to The Home Office by the Appellant about which the Home Office relies on section 12 Freedom of Information Act 2000 and The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.

2. What follows is a summary of the submissions, evidence and our view of the law. It does not seek to provide every step of our reasoning. The parties are asked to note that the absence of a reference to any specific submission or evidence does not mean it has not been considered.

3. In this decision any page numbers indicated by their inclusion in brackets refer to pages of the bundle, if the letters CB are added it is to the closed bundle and the following definitions are used:- Freedom of Information Act 2000 FOIA The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 the 2004 Regs. The Home Office the HO The Respondent the IC The IC's decision notice the DN The Appellant's request for information the Request the non-binding guidance issued by the IC the Guidance Upper Tribunal & First-tier Tribunal UT & FtT

4. The appeal was decided without a hearing as provided for in paragraph 1 of the Directions of 25 July 2025 and allowed by the Tribunal by rule 32(1) The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. Evidence and matters considered

5. For this appeal we had an open bundle of 194 pdf pages including the Appellant's statement dated 15 August 2025 and other material such as the Appellant's supplemental submissions. We also had a 6 page closed bundle of material held pursuant to rule 14(6) 2009 Rules about which there was an open gist dated 2 April 2026. In dealing with the closed material we kept in mind that we had a continuing duty to ensure fairness with regard to it (Browning -v- Information Commissioner [2014] EWCA civ 1050).

6. The closed material was the redacted part of the HO letter to the IC of 3 February 2025 under the heading "Further Background" on page A4CB which in its redacted form is on page 118 of the bundle. On 16 October 2025 Judge Harris made an order pursuant to rule 14(6) 2009 Rules which permitted this item to be withheld and refused the Appellants application in relation to the same material. It is referred to in the gist of 2 April 2026. In response in supplemental submissions of 6 April 2026, the Appellant said:- "This description provides no indication of the substance of those reasons, nor does it identify which delays or which requests are being referred to. Given that even the Commissioner’s own record documents the Home Office failed to complete “required action” within specified timeframes on a number of separate occasions, both before and during the Commissioner’s investigation, this gist does not permit any meaningful understanding of the underlying material."

7. The Appellant's view, set out in the supplemental submissions, is that:- "The extent of the Home Office’s cooperation is a central issue in this appeal, and one on which the Commissioner has relied in reaching his conclusions (Commissioner’s Response §37). Where material said to explain delays—and so non-cooperation—is withheld, it cannot be meaningfully understood or tested."

8. We concluded that its status as closed material should continue because while the content might be relevant to historic and other issues on-going between the Appellant and the HO we did not consider its content to be of material relevance in dealing with this FOIA appeal and in our view the gist adequately explained what it said. FOIA

9. FOIA provides that any person making a request for information to a public authority is entitled to be informed in writing if that information is held (section 1(1) (a) FOIA) and if that is the case to be provided with that information (section 1 (1) (b) FOIA). These entitlements are subject to a number of exemptions and to other provisions such as section 12 FOIA. Background

10. The main issue to be decided in this appeal relates to the HO's assertion that dealing with the Request would exceed the relevant cost limit and therefore the background and broader context, while helpful to set the scene, was only of limited relevance or assistance. FOIA is almost always "motive blind" and "requester blind". However the history of the interaction between the HO and the Appellant and the broader context was provided to us. By way of examples this included:- (a) reference in 2019 (71) to the IC decision ref FS50826520 in 2019 involving the HO and the Appellant and on 24 August 2019 the Appellant said to the HO (70):- "What an extraordinary revelation the even the Home Office is capable of acting as if they are reasonable adults, when absolutely forced to do so and left no opportunity to provide their own oversight and be evasive. I note that while this is 'similar' to information previously provided, you have decided to purge it of false, misleading, unasked for information and instead just meet your legal obligations (even if only after failing to meet your legal obligations in the first place)….. You are an absolute national disgrace, and I hope you've learned from this experience that it's actually easier just be honest, to not break the law, and to not treat people who contact with utter and unending contempt in the first place. That way, you can just avoid having to go through this pointless charade. Shame on every single one of you." (b) the Appellant made a subject access request to the HO in or about May 2020 (161); (c) at some point there was a complaint to the PHSO and the OIEC; (d) on 13 November 2021 the Appellant complained to the complaints department of the HO (161) and said for example (161):- "As The Home Office is well aware, it has already been the subject of a complaint to the PHSO regarding its conduct in relation to me. This current complaint is about the conduct of The Home Office following the conclusion of that matter and such it has not been reviewed by the PHSO nor responded to by The Home Office. I have cc'd my MP into this e-mail, on the basis that The Home Office has at no stage between August and the present met its published service standards to me, in relation to correspondence or complaints, and simply does not reply at all when contacted (conduct that is part of the current complaint outlined." (e) on 3 February 2025 the IC issued an Information Notice pursuant to section 51 FOIA to the HO ref IC-341904-K4C9 (184).

11. The Appellant has strongly held views as to the way in which the Appellant considers the HO has dealt with him for some time. By way of example only:- (a) in the appeal form the Appellant said (21):- "The Home Office has, for a number of years, acted in ways that I personally regard as abusive towards me. They are currently under investigation by the OIEC for their conduct, having previously had a finding against them by the PHSO. I think The Home Office is a dishonest, untrustyworthy, amoral digrace of an institution, and I do not think they should be allowed to participate in any kind of civil discourse until they start acting in accordance with the law, human decency, and their own policies…" (b) in his statement the Appellant said (145):- "34.Between 2019 and 2020 – as the ICO is aware – The Home Office lied to me, and about me to the ICO, while under investigation by the PHSO. It withheld evidence that could be used against it and misled the ICO, the PHSO, and me…"

12. The bundle also contained information about other interactions between the Appellant and the HO such as that on 24 February 2025 the Appellant made a request for information to the HO about previous responses from the HO (151) and on 25 March 2025 the HO replied to the 24 February request (152) and relied on section 14 FOIA and the assertion that this later request was vexatious.

13. This information was in the bundle and it therefore added to our understanding of the broader context of the interaction between the Appellant and the HO and the IC. However, as our principal task was to consider the issue of whether the HO was entitled to assert that section 12 FOIA applied to the Request, it was not of central relevance.

14. Clearly of relevance was that on 9 December 2023 the Appellant wrote to the HO and said (70):- "…I have been informed by J Haley of 'Customer Operation Support Services' at The Home Office that during 2021-2023 there was a prioritisation of responses from '[email protected]' and SARU to those affected by "COVID, Afghanistan/Ukraine". Could I please be provided with the internal policy/instructions/directions that informed staff members of both business areas that this was the case, and of how such a policy was to be practically implemented? I'd also like to be provided with any written examples of this policy being used – i.e. a staff member applying an assessment to a complaint and deciding to prioritise or not prioritise a complaint based on its relationship to "COVID, Afghanistan/Ukraine"…"

15. The HO replied on 11 January 2024 and said that on the basis of section 12 FOIA it was not obliged to comply with this request. It went on (73) to provide what it said was advice and assistance pursuant to section 16 FOIA including as regards refining the request. On 15 January 2024 the Appellant sent a refined request which is the Request for the purposes of this appeal (75). Role of the Tribunal

16. The Tribunal's role in an appeal by section 57 FOIA is set out in section 58 FOIA which provides that:- (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.

17. In NHS England -v- Information Commissioner and Dean [2019] UKUT 145 (ACC) the UT said "10. The First-tier Tribunal ‘exercises a full merits appellate jurisdiction and so stands in the shoes of the IC and decides which (if any) exemptions apply…"

18. We had regard to other authorities such as Information Commissioner v Malnick and Advisory Committee On Business Appointments [2018] UKUT 72 (AAC) andPeter Wilson -v- The Information Commissioner [2022] UKFTT 0149 where the FtT said (with which we agree):- "30…the Tribunal’s statutory role is to consider whether there is an error of law or inappropriate exercise of discretion in the Decision Notice. The Tribunal may not allow an appeal simply because it disagrees with the Information Commissioner’s Decision. It is also not the Tribunal’s role to conduct a procedural review of the Information Commissioner’s decision making process or to correct the drafting of the Decision Notice.”

19. In Williams v Information Commissioner and Commissioner of Police for the Metropolis [2023] UKFTT 1079 (GRC), the FtT said:-

10. In his grounds of appeal, Mr Williams first complains that the Decision Notice is unlawful due to the Commissioner not having examined the information before reaching its decision. We reject this. On receipt of a complaint under s.50(1), the Commissioner is required to determine whether a public authority has dealt with the relevant information request in accordance with the requirements of Part I of FOIA and, if appropriate, issue a Decision Notice. FOIA imposes no procedural requirements as to how this is undertaken. Nor does the Tribunal have any supervisory role. It is for the Commissioner to decide how best to investigate a particular complaint. On appeal, the Tribunal's full merits jurisdiction enables it to consider any further relevant matter. The investigation that was undertaken will also affect the weight afforded by the Tribunal to the Commissioner's conclusion."

20. We also noted Forstater v Information Commissioner and others [2023] UKUT 303 (AAC) where the UT at para 40 said:- "(2) the “ordinary presumption” is that it is for an appellant to prove their case. The burden will rest with the appellant except where statute expressly or impliedly provides otherwise:…" (3) however, the concept of the burden of proof is of secondary importance in tribunal proceedings which involve a full merits review, since to apply strict burdens of proof may prevent the tribunal from properly discharging its responsibility to decide the facts for itself and/or exercise any discretion afresh…" Request to appeal

21. The Request (after revision) of 15 January 2024 asked (75) "…Attached is a FOI response provided by The Home Office, which I would like to refine. To begin with, however, I would like to sternly remind The Home Office that your obligation, in the spirit of the law, is to favour disclosure over withholding information, and that your initial response does not seem to me to be in that spirit. The original request did not ask you for "all" examples. You were asked for "any". If there was a widespread policy, as has been suggested, implemented widely over a long period of time then it might be expensive to collate every single example of this, but it should be extremely easy to provide any example, but you have declined to cooperate in this disclosure on the basis that it would be expensive to do so. That explanation makes no sense. Further, I take it that thousands of employees were operationally working under these conditions, and it is simply impossible for me to believe that disclosable instructions were not given to any of these employees, or that every evidence of this was "verbal" and "ad hoc". I want any easily available examples, as initially requested. I am happy for the disclosure to be partial, and limited as needed to make this disclosure practically manageable…"

22. The HO replied on 11 March 2024. It provided one redacted letter (79) and said "We have concluded that some of the information you have requested is exempt from disclosure under sections 27(1)(a) and 40(2) of the FOI Act:." (77). The Appellant asked for an internal review on 12 March 2024 (81). He said for example:- "2. The Home Office has provided 1 document. It is impossible to view this as anything but an offering made in bad faith. When first contacted, I was offered two explanations for a lack of disclosure: a) that a disclosure would be too expensive (take too much time to collate), very clearly indicating a large number of documents (in addition to The Home Office not having read my request), and b) undermining this first point slightly, a suggestion that the information might have been 'ad hoc' and given 'verbally'. The document provided reflects neither of these situations, nor does 1 document about Afghanistan show any examples related to COVID nor Ukraine (and so does not meet the information request), but it does make clear the point I have had to make to you repeatedly, now, which is that in a large organisation there has to be written communication conveying priorities andprocedure and indeed there clearly is. Your offering of 1 document does not come across in the spirit of the law, the spirit of transparency, just as the various, changing, and contradictory responses come across as evasive and dishonest. You have not appropriately addressed the request for information, and you need to disclose more information, which you very clearly hold."

23. The outcome of this review was provided on 29 October 2024. It referred to section 12 FOIA and said that (83) "…the response provided to you was incorrect as your request cannot be handled within the appropriate cost limit." The Appellant complained to the IC (93) and said:- "They have not complied with a request for review within a reasonable timeframe, and they have provided both changing and unreasonable/inappropriate exceptions that do not apply to the information requested. They are, very clearly, not complying with the spirit of the law, and in their failure to respond in a reasonable timeframe, I do not believe they have complied with their legal obligations. The Home Office operates, and is operating here, in bad faith with respect to disclosures and the transparency of information. The important background, is thatthey are currently under investigation for wrongdoing by the OIEC, and the requested information would reveal their conduct and so be relevant to that investigation. They have previously, and I have reason to conclude are again, sought to withhold information that they are legally obliged to disclose, while they are under investigation for wrongdoing. The ICO is aware that this has been their previous conduct."

24. The DN recorded the IC's conclusions that:- (a) the HO was entitled to rely on section 12(1) FOIA; (b) the HO had failed to respond to the Request as required in breach of sections 1(1) and 10(1) of FOIA; (c) a public authority could claim reliance on a new exemption; (d) the Request was potentially not valid as a request in light of section 8(1)(c) FOIA; (e) the HO had met its obligations pursuant to section 16 FOIA; and (f) it could not consider the conduct of the internal review because despite there being published good practice there is no FOIA obligation to provide one. Appeal

25. On 23 February 2025 the Appellant commenced this appeal. Thereafter:- (a) the IC responded on 20 May 2025 (33); (b) the Appellant replied to the IC's response (47); (c) the Appellant provided a witness statement dated 15 August 2025 (139); (d) an Order was made pursuant to rule 14(6) 2009 Rules by Judge Harris on 16 October 2025; (e) the appeal was listed to be heard on the papers on 15 March 2026 but adjourned with Directions given by Judge Kiai; (f) a gist of closed material was sent by email by the IC on 2 April 2026; and (g) the Appellant provided supplemental submissions on 6 April 2026. Summary of issues

26. We reviewed the submissions of the parties. In doing so we noted that:- (a) the IC at para 21 of its response (38) identified three main grounds of appeal being:- "Ground One: The Appellant argues that refined Request had been ‘misread’ by the Home Office, as if it had been asking for ‘any and all’ information and that the ICO did not seek to understand the Request or try to resolve the matter: Ground Two: The Home Office was wrong to “….change their position, without explanation and evidence….” and that the Commissioner was wrong to accept this change; Ground Three: The Commissioner in his investigations has ‘failed’ to act impartially, and failed to act upon the evidence the Home Office has presented. " (b) the Appellant in the reply said (57):- "21. The Appellant rejects paragraph 21 in its entirety. If the Respondent genuinely believes the appeal rests solely on the three points listed, then it has misunderstood the substance of the appeal. This mischaracterisation alone should preclude the Tribunal from accepting the Respondent’s request to dismiss. The points listed in paragraph 21 are ancillary concerns raised within the broader context of the appeal. They are not its central grounds. It is incorrect for the Respondent to frame them as such, and the reasoning that follows from this cannot be relied upon. As made clear throughout this submission, the core of the appeal is that the Home Office made implausible, unsubstantiated claims about the scale of work required to fulfil the request, and that the Commissioner accepted those claims to arrive at unsound and unsafe conclusions, without evidence or scrutiny to support them.

22. The Appellant agrees that the Tribunal’s jurisdiction under section 58 FOIA is to determine whether the Commissioner’s decision was in accordance with the law, or whether the Commissioner failed to exercise discretion appropriately. That is precisely the basis of this appeal. The Respondent appears to forget these obligations, at CR § 38, incorrectlystating “The Tribunal’s jurisdiction is to determine whether or not the Commissioner’s DN in respect of the above information request is in accordance with the law”, omitting the exercising of discretion."

27. In light of the above we considered what issues were for us to decide based on our role (see above) and the issues that appeared from the submissions of the parties. From this we identified the following 3 issues:- (a) the HO's change of position in its responses to the Request; (b) whether the HO was entitled to rely on section 12 (1) FOIA; and (c) whether the HO had discharged its obligations as set out in section 16 FOIA.

28. While they were noted and we had them in mind when reaching our decision in this appeal we concluded that we were not required to make findings on certain other matters raised including:- (a) the IC's decision on sections 1 and 10 FOIA; (b) the IC's comment in the DN that the Request may not have complied with section 8(1)(c) FOIA; (c) the time it took for the HO to provide the outcome of the internal review; (d) the complaints to the HO, the PHSO and the OIEC; (e) the Appellant's later FOIA requests to the HO and the HO's response to them; and (f) the IC's Notice to the HO pursuant to section 51 FOIA.

29. We noted the concern raised by the Appellant about the way in which the IC had dealt with the complaint and reached the outcome of the DN. In his statement the Appellant said for example (143):-

26. I must finally record my dissatisfaction with the handling of this matter, particularly the Commissioner’s direction to refer it to Tribunal and its conduct before Tribunal. What should have been a straightforward matter – requiring only that the Commissioner consider factual issues it had not, consider all factual issues critically and impartially, and critically evaluate its conclusions – will insteadconsume at least two years of my life from the initial request. It has imposed an unjustifiable burden on me, and exhausted limited personal resources in the face of two organisations with comparably unlimited resources and professional legal expertise and experience.

27. This prolonged process has been disproportionate to the nature of the concerns and inconsistent with natural justice. I ask that the Tribunal acknowledge in its ruling that the Commissioner’s conduct has been unreasonable and caused harm – harm both unnecessary and disproportionate – and that steps must be taken to ensure similar treatment of others in the future is prevented."

30. These concerns also included that the IC had adopted the HO's submissions uncritically; that the IC had made a disparaging characterisation of the Appellant and for example as set out in the grounds of appeal (23):- "The ICO has a general policy of operation which is evidenced in this case and is as follows: A member of the public brings a complaint. They can only do so with evidence showing the possibility of wrongdoing. Without evidence a complaint would be rejected. The ICO then puts the complaint to a third party (in this case, and often, The Home Office). The ICO then receive a response from the Third Party, and in every single case I ave encountered with The Home Office that response asserts that they have done nothing wrong, and it provides no evidence in support of that assertion. The ICO does not require evidence from The Home Office (as is required of a member of the public to prove the possiblity of a complaint), however, the ICO then treats The Home Office’s assertion of its position as if that assertion itself *is* evidence, and so concludes in favour of The Home Office, without requiring evidence, without asking follow-up questions, fact checking, or putting the counterclaims (which, in any case, are asserted without evidence) to the member of the public."

31. For balance we also record that the IC in response said for example (42):- "41. The Commissioner recognises in the Appellant’s Grounds, and as documented in his communications with the Commissioner during the investigations following on from service of the Decision Notice, that he clearly has a distrust of the ICO and the Home Office, in their ‘inappropriate way of conducting business'". and also:- "The Commissioner strongly denies any allegations of bias or lack of impartiality in the way in which he has dealt with this matter."

32. While we were aware of what had been said about the IC by the Appellant we were not required to reach findings of fact on such assertions to deal with the specific issues in this appeal because of the nature of the role of the Tribunal in this appeal as set out above and because we endorse the view of the IC that (43) "38… In any event, the right to a full rehearing of the merits by the Tribunal cures any alleged procedural defect or breach of natural justice in the Commissioner’s investigations." Change of position

33. In this matter the HO relied on section 12 then sections 27 and 40(2) and then section 12 when the HO provided the outcome of its internal review prior to the complaint to the IC or the DN – from which this appeal arises.

34. In Gibbons v Information Commissioner [2024] UKFTT 35 (GRC) the FtT said (and we agree):- "76. It is not in the public interest to prevent late reliance on exemptions and this has been recognised in the case law that clarifies that the Tribunal may permit reliance on “new” exemptions even during the appeal proceedings, (see above legal framework). It may not be necessary in all circumstances for a public authority at the beginning of the FOIA process to rely on every possible exemption that might apply, but it is necessary for the public authority to keep matters under review and to reconsider their response to a request for information when appropriate. This not only allows further or different exemptions to be relied upon but also enables further information to be released such as occurred in this case. In our view, if it were otherwise intransigence would be encouraged at the expense of transparency. It is in the public interest for the statutory framework set out in FOIA to be applied properly, and this is assisted by the ability of the public authority to rely on further or alternative exemptions from those that were initially raised."

35. This FtT decision refers to be Court of Appeal Judgment in Birkett v The Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606 (21 December 2011). In that Environmental Information Regulations case the Court of Appeal held:- "24…Suppose a public authority mistakenly fails to rely in its refusal notification upon an adverse effect upon public security or national defence because it did not realise the significance of the information; or it fails to rely on an adverse effect upon a criminal inquiry or upon the ability of a person to receive a fair trial because it is unaware of the inquiry or the impending trial; or if it fails to rely on the commercial confidentiality of information which is only raised as an issue by a third party during the review process; or it fails to rely on exception (h) because it does not initially appreciate that the release of the information might endanger a rare species; would a purposive interpretation of the Directive preclude the review process under Article 6 from considering those exceptions however grave might be the adverse effects of disclosure? In my judgment, the answer to that question must be "No" if the Directive is read as a whole."

36. Additionally in Information Commissioner v E Malnick and The Advisory Committee on Business Appointments [2018] UKUT 72 (AAC) (1 March 2018) the UT decided:- "102 These conclusions are entirely consistent with the wide scope of the tribunal’s duties and powers under section

58. The decision in Birkett means that there is no limitation on the issues which the FTT can address on appeal, and the focus of its task is the duty of the public authority. This means that the tribunal must consider everything necessary to answer the core question whether the authority has complied with the law, and so includes consideration of exemptions not previously relied on but which come into focus because the exemption relied upon has fallen away. It cannot be open to the FTT to remit consideration of new exemptions to the Commissioner, because to do so would be incompatible with the FTT’s obligation under section 58 to consider those matters for itself.

37. The UT in NHS England v Information Commissioner and Dean [2019] UKUT 145 (AAC) set out how the Tribunal should respond if it considered that other exemptions might apply and said:- "11. It follows that once the public authority has given its response to the request, it has no further role save for compliance with a decision notice of the IC or a decision of the FTT (paragraph 76). And, as I have shown, both the Commissioner and the tribunal are under a duty to consider any exemption that might apply, regardless of whether it has been raised. Once the case is before them, that is their role, not the authority’s.

12. So the tribunal was right to be concerned that there could be exemptions that had not been considered by either NHS England or the Information Commissioner. But it was wrong to deal with that issue by remitting the case back to the authority. What it should have done was to give directions to the authority to identify any other exemptions that might apply, to consider whether or not any did, and then to make a decision accordingly."

38. We considered what was said by the parties on this issue, the legal authorities and we took account of the issues under consideration in this appeal. We agree with the IC's view as set out in the DN (8) that:- "a public authority is able to claim a new exemption either before the Commissioner or the First-tier Tribunal and both must consider any such new claims" and that this applies, as in this appeal, to a change of position by a public authority to rely on section 12 FOIA. Section 12 FOIA

39. Section 12 (1)-(3) FOIA provides as follows:- (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

40. The appropriate limit is set by the 2004 Regs. Reg 3 states:- (1) This regulation has effect to prescribe the appropriate limit referred to in section 9A(3) and (4) of the 1998 Act and the appropriate limit referred to in section 12(1) and (2) of the 2000 Act. (2) In the case of a public authority which is listed in Part I of Schedule 1 to the 2000 Act, the appropriate limit is £600. (3) In the case of any other public authority, the appropriate limit is £450.

41. By reg 4 2004 Regs the public authority can take account only of the costs it reasonably expects to incur in relation to the Request in these tasks:- (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.

42. By reg 4(4) 2004 Regs the estimated time cost allowable for the tasks in reg 4(3) 2004 Regs is set at £25 per hour per person which, to reach £600 in this case, would be 24 hours.

43. In Cruelty Free International v Information Commissioner [2017] UKUT 0318 (AAC) the UT (see para 25) said that in considering the estimate one takes the public authority's record keeping practices as they are even if they are defective and this extends to whether the defect also amounts to a "breach of a legal obligation."

44. In Randall v Information Commissioner & Medicines and Healthcare Products Regulatory Agency’ EA/2007/0004 it was held that:- “13 The effect of section 12 is not to impose a limit leaving the authority obliged to carry out work to the limit…it is to remove the information from the section 1 duty to disclose altogether”

45. In Randall the Tribunal also said the basis of the decision relating to the reasonableness of costs should be “sensible, realistic and based on cogent evidence”. This formulation is also found in the Guidance which says:- “Not only does your estimate have to be sensible and realistic, you need to make sure it is supported by cogent evidence. You should therefore make sure you are in a position to make that evidence available if the Commissioner receives a complaint.”

46. In Reuben Kirkham v Information Commissioner (Section 12 of FOIA) [2018] UKUT 126 (AAC) the UT (at para 34) said in answer to the question at section F “How do we know they’re not just making it up?” “The answer to Mr Kirkham’s question is this: there is no guarantee of certainty, but the Information Commissioner and the tribunals should take a sceptical approach and require the public authority to provide persuasive evidence of how they undertook the estimate, with follow-up questions if necessary.”

47. In Roberts-v- the information Commissioner (EA/2008/0050) para 12,the FtT said:- “Section 12 provides that the public authority may rely on its costs estimate to refuse a request but does not expressly make that reliance conditional on the quality or nature of the estimate. One must look in the Regulations for any guidance as to how the estimate should be made. In that connection Regulation 4(3) provides that the public authority may only take account of the costs it reasonably expects to incur in carrying out certain specific tasks. It says no more about any steps that the public authority should take in evaluating possible methods of extracting data. However, the word “estimate” itself provides some guidance. It points to something more than a guess or an arbitrarily selected figure. It requires a process to be undertaken, which will involve an investigation followed by an exercise of assessment and calculation. The investigation will need to cover matters such as the amount of information covered by the request, its location, and the hourly cost of those who will have the task of extracting it (in this case a rate imposed by the Regulations). The second stage will involve making an informed and intelligent assessment of how many hours the relevant staff members are likely to take to extract the information.

48. In Roberts the FtT also said that “Clearly the whole exercise must be undertaken in good faith and, as the Regulation provides, involve an element of reasonableness.” Section 12 FOIA- Submissions

49. In its letter of 29 October 2024 the HO said to the Appellant that it based its section 12 response and its costs estimate on the Request and the points raised by the Appellant in the internal review request. It gave a limited explanation at this stage as to why, in its view, the time needed to locate and retrieve information would exceed the cost limit in the 2004 Regs. The writer said:- "I am advised that the information you have requested is not easily identifiable beyond the customer services team and in order to consider if further information is held, officials would need to conduct a search across every Home Office department to identify if any information could be captured within the remit of your request. The work would be extensive due to the number of different teams and officials involved. It is estimated that the cost to search, identify and extract the information in scope would exceed the cost limit under section 12."

50. A more detailed explanation was provided to the IC on 3 February 2025 (118). At this stage the HO said that it relied on section 12 FOIA as regards the activities set out in reg 4(3) 2004 Regs. The HO split its cost estimate into two parts which its referred to as (a) written guidance and (b) "any examples" (119).

51. On the first the HO set out its explanation as to why there had been limited written guidance and said that it had seven senior manager's mailboxes to check and, as searching one took 30 minutes, it concluded that to search all 7 would take 3.5 hours.

52. The HO said that the second part was a request for "any examples" and that during the crisis period the HO had received 179,223 complaints which had arrived in a number of different ways. The HO set out its view on how it would have to go about a search. It said (119):- "…To establish if any further recorded information is held in the scope of the request, it would be necessary to check each complaint manually to establish if a note was made on the complaints database to check if a staff member had assessed a complaint to see if it met the priority criteria. To identify if a note relating to this instruction was added to any records or referred to within a response, a manual review of each case would be required. Due to the wide scope of the search criteria, it would not be possible to draw this information from any database reports meaning a manual trawl would be required to identify if any complaint records were annotated to reflect this instruction. Recovery plans also operated outside of our normal working practices resulting in limited case annotation information."

53. On the basis of that methodology the HO estimated it would take 4 minutes to check each reference and therefore 15 could be checked per hour. As the HO concluded it would potentially need to check all records the total number of hours estimated for the task is given at just under 12,000 which is clearly considerably in excess of the maximum provided for in the 2004 Regs.

54. The writer of the letter said that "The estimate above has been based on the quickest method of gathering the information" and the IC in its response recorded that (39):- "25…The Home Office provided confidential submissions to the Commissioner on 03 February 2025, and explained that any information within scope of the Request would be held in multiple locations, outside of service teams, and although the Request had asked for ‘any easily available examples’, extensive work would still be required to check each complaint or case manually to check if it met the priority criteria. The Home Office explained to the Commissioner that: “….the information, if it does exist, is simply not held in such a way that there are any easily available examples. The manual trawl would involve a cross check from a list of case references against the Complaints Records System, accessing the record, reviewing case notes and the response and collating outcome.”

55. In the DN the IC concluded that (13):- "32. The Commissioner recognises that the information specified in the request is not held centrally. It would have to be collated in several steps and from multiple staff members, across multiple business areas. Having considered the search strategy that would be necessary and the specific estimates provided by the Home Office, which are based on preliminary searches, the Commissioner’s conclusion is that it has estimated reasonably and sensibly that the costs involved in complying with the request would significantly exceed the £600 limit established by the Fees Regulations."

56. The Appellant's submissions on section 12 FOIA and the 2004 Regs include references to the role of the IC, the interactions between the HO and the Appellant and his view of the HO and its change of reliance to section

12.

57. In his statement the Appellant said (141):- "18. My own view, on the evidence available, is that it is not just that The Home Office’s claims are unreasonable and inaccurate, but also that they could not possibly be offered in good faith. Section 12(1) exemption therefore cannot apply, and the Commissioner has erred significantly in applying it on behalf of The Home Office in its Decision Notice."

58. The Appellant made a number of submissions including that he:- (a) said that the spirit of the law was in favour of disclosure; (b) takes the view the HO's has made "…implausible, unsubstantiated claims about the scale of work required to fulfil the request…"(57); (c) said that the time estimates given by the HO were completely "unrealistic not sensible and not supported by any evidence" (24); (d) said "the suggestion that the simple request for information would take 11,958 beggars all belief and it is almost comical how large that number is and how ridiculous the suggestion were it not being used in such a dangerous and bad faith way"; (e) did not agree with the way in which the HO had interpreted the Request into the two parts it identified and agreed with the IC at para 24 of the response (see para 24 of the reply) that (39); "The Appellant states in his Grounds that he considers that his Request was worded ‘flexibly’ and that he would have been content with ‘some’ information, any easily available examples, and for disclosure to be partial and limited to make disclosure practical and therefore under the limitations of the Fees Regulations." (f) said that the HO had in effect chosen to misread the Request "as if it had been for any and all information which it clearly was not" (25); (g) said that the HO was not asked to search through 179,223 complaints and that " a realistic response to the request for information that could quickly and easily be conducted in under 3.5 hours" (25); (h) disagreed with any reliance by the HO on any additional time caused by the way in which the HO is organised or its size and structure (52); (i) said that the Request was "Specifically designed to avoid all of the problems that the Home Office has tried to create…" (25); and (j) expressed concern that the HO's position on section 12 was not supported by cogent evidence but relied only on assertions (56). Tribunal's decision on section 12 FOIA

59. In reaching our own decision we kept in mind the legal authorities and other FtT decisions referred to and the Guidance including that:- (a) section 12 does not impose a limit requiring a public authority to work to that limit; (b) an estimate is to be reasonable, sensible, realistic, based on evidence and carried out in good faith; (c) the Guidance says:- "The estimate does not have to show the exact costs of complying with the request. It simply has to be robust enough to establish whether the request would exceed the appropriate limit. This can only be determined on a case by case basis. In some cases, a quick calculation will be all that’s needed to show that the cost would clearly be above or below the limit. But in other more borderline cases, a more detailed estimate is required"; and (d) the estimate of the cost of compliance with a request is to be based on how the actual public authority in fact holds the information even if that is because the systems are badly organised or breach legal obligations.

60. Turning to the Appellant's submissions:- (a) we do not accept the relevance of the "spirit of the law" argument because FOIA specifically provides section 12 as a means (if validly relied upon) for a public authority to remove itself from its section 1 FOIA obligations (b) we do not accept (in so far as it is claimed) that the HO should have provided what it could within the cost limit of the 2004 Regs. (c) the HO was entitled to include in its estimates costs associated with and caused by its size and structure.

61. We considered other arguments made by the Appellant which we grouped as follows:- (a) the HO's case was not based on cogent evidence; (b) the HO purposely misread and misconstrued the Request or at least unreasonably (mis) interpreted it; and (c) the HO's estimates are implausible and unrealistic and the work needed to respond to the Request could have been done much more quickly. Evidence

62. The HO did not become a party to the appeal and there was therefore no response to the appeal and also no witness statement from an official at the HO. However in support of the HO's position we had its correspondence with the IC and the Appellant which we concluded provided a logical and clear indication of its position enabling us to reach our conclusions. Bad faith

63. The Appellant is concerned that the HO intentionally chose to (mis) interpret the Request in such a way as to enable the HO to respond as it did. The Appellant's position is in part at least based on his evident distrust of the HO and his disbelief as to the "unrealistic" estimate provided.

64. In our review of the bundle provided, while the Appellant's own concerns and distrust of the HO is evident, we did not find evidence that led us to conclude that the HO had acted in bad faith and we find that they did not do so. On the evidence therefore we have not concluded that the HO set out to misinterpret the Request purposely knowing that interpretation to be false with an intention of misleading the Appellant, the IC and the Tribunal as to its estimates. The approach taken

65. From our review of what the parties have said and what we have seen we have also reached the conclusion that the Appellant and the HO interpreted what was being requested differently. For example:- (a) the (original) request to which the HO gave a section 12 reply asked for example, for "…any written examples of this policy being used…" (b) when submitting a revision the Appellant said:- "The original request did not ask you for "all" examples. You were asked for "any" " I want any easily available examples, as initially requested." " I am happy for the disclosure to be partial, and limited as needed to make this disclosure practically manageable." (c) in response to the HO providing one document the Appellant said "It is impossible to view this as anything but an offering made in bad faith…" (d) the HO concluded that to find "any examples" would necessitate a widespread search. (e) the Appellant in submissions said that he HO had not interpreted the Request correctly, the HO's division of the Request into the two parts was not appropriate, the HO was not asked to search through 179,223 complaints and the Request was designed to avoid the problems the HO created.

66. We share the IC's view that:- (a) asking for “any easily available examples” and not giving "clearly defined parameters for the request" placed the HO in a difficult position as it could not know when it had complied with such a request; (b) a request for information which is describe as being "easily available" may not be a valid request pursuant to section 8(1)(c) FOIA which defines a request as one which describes the information requested although we have reached no decision on this point.

67. In our view that the HO interpreted the Request in a reasonable way even if (as is likely) when seen in hindsight the Appellant and the HO were never in agreement as to what was being asked and answered. In light of our conclusions on section 16 (below) it is also our view that the HO responded appropriately by providing an estimate based upon their interpretation but at the same time suggesting further revisions to the Request. The estimate given

68. The HO said:- "…We estimate that the cost of locating and collating any relevant information and extracting the information to meet your request would exceed the cost limit of £600 specified in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. We are therefore unable to comply with it. The £600 limit is based on work being carried out at a rate of £25 per hour, which equates to 24 hours of work per request. The cost of locating, retrieving and extracting information can be included in the costs for these purposes. In this case the time taken to locate and retrieve information would exceed this limit. I am advised that the information you have requested is not easily identifiable beyond the customer services team and in order to consider if further information is held, officials would need to conduct a search across every Home Office department to identify if any information could be captured within the remit of your request. The work would be extensive due to the number of different teams and officials involved. It is estimated that the cost to search, identify and extract the information in scope would exceed the cost limit under section 12."

69. In considering the likely costs HO therefore;- (a) considered the scope of the Request as interpreted; (b) carried out a review on one mailbox; (c) calculated how many more mail boxes would need to be searched; (d) considered the HO's structural size and organisation; (e) discovered how many complaints had been received; (f) considered if the search could be done from database reports but concluded each complaint would have to be looked at manually; and (g) calculated a time estimate of 4 minutes per manual review

70. In our view, based on the HO's interpretation of the Request as revised, the above was a reasonable approach to take to calculate the estimate to give. On that basis, while the estimate is very high, we concluded that it was not implausible or unrealistic and the work needed to respond to the Request could not have been done much more quickly. Section 16 FOIA

71. Section 16 FOIA provides that:- "(1) It shall be the duty of a public authority 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. " (2) 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. "

72. In Brown v Information Commissioner and The National Archives EA/2006/0088 (2 October 2007), the FtT said:- "78. The duty on a public authority to provide assistance and advice under section 16 is expressly qualified by the words “only in so far as it would be reasonable to expect the authority to do so”. It is clear from this that the advice and assistance that it would be reasonable to expect depends on the particular public authority in question. The issue is about what is reasonable for “the” public authority in question to do"

73. The Guidance advises that:- "Your duty to provide advice and assistance extends ‘so far as it would be reasonable to expect’ you to do so. Often, what is reasonable will be determined by the request’s specific characteristics. Therefore, you should be flexible and treat each application or potential application on a case by case basis. Often, it will be clear what advice and assistance you need to offer. Sometimes, you will need to liaise with the applicant to establish what reasonable advice and assistance might be appropriate." Position of the parties on section 16

74. When the HO responded to the initial request it referred (73) to section 16 and said that if the Appellant refined the Request the HO would consider it again but gave an indication that any such revised request might still involve costs in excess of £600. It also said (73) "Unfortunately, we are unable to suggest how this question can be reworded to bring it within the cost threshold."

75. After the Appellant had submitted the revised Request and the HO had answered it the Appellant sought an internal review of that reply and when the HO reverted to reliance on section 12 it said again (84): "If you refine your request, for example, by providing a specific timeframe and one area of work where the crisis occurred, we may be able to comply with a future request. I should also point out that if you submit a revised request, it is possible that other exemptions in the Act might apply."

76. When setting out its position to the IC during the investigation the HO addressed the question of section 16 FOIA and said (120):- " In the internal review the advice and assistance, was that the complainant could refine their request, by for example, providing a specific timeframe and one area of work where the crisis occurred. The department may then be able to comply with a future request. However, this caveated to explain that should a revised request be submitted, it is possible that other exemptions in the Act might apply"

77. In the DN at para 35 (13) the IC referred to what the HO had said to the Appellant and on that basis concluded that the HO had satisfied its section 16 obligations. This is repeated in its response to the appeal at para 27 -29(40).

78. The Appellant does not agree. In his reply he says that:- (a) the suggestion that the Request is revised is not assistance but in fact a refusal to help followed by an invitation to try but with the clear implication that another rejection would follow; (b) the revised request was also rejected; (c) in a subsequent FOI request made on 24 February 2025 the HO refused to engage but instead falsely labelled the later request as vexatious; and (d) the HO acted unhelpfully when it said it could not suggest how the Request could be reworded to bring it within the cost threshold.

79. In has statement the Appellant also said (140):- "7. In practice, this means alleged “advice and assistance” is meaningless: revisions are not treated as fresh, and are cited additionally as evidence of vexatious behaviour, while still not being considered." Tribunal's review and decision

80. The HO was aware of its section 16 obligations. In our view the HO went as far as it was reasonable to expect and it discharged its section 16 obligations because:- (a) with no narrowed parameters and the Appellant not content with a single example, the HO was unable to know what number/type of example would satisfy his requirements; (b) it suggested that the Appellant revise the request and then repeated that advice when the Request (as revised) was received; (c) the HO provided appropriate advice when suggesting that the Appellant might focus on a particular time frame and area of work; (d) while saying it may then be able to comply with a revised request it was also fair for the HO to manage expectations by forewarning the Appellant that a revised request might be met with new exemptions; (e) while we understand why the Appellant thought it was unhelpful of the HO not to provide suggested rewording it was reasonable of the HO not to do so and does not diminish, in our view, the performance of their section 16 obligations; and (f) the decision of the HO to rely upon section 14 FOIA when dealing with a subsequent request made in February 2025 in our view is not a relevant consideration when dealing with this appeal but, even if it was, it would not in any way indicate that the HO had not complied with its section 16 obligations as regards this matter. Decision

81. In summary in our view:- (a) the HO was entitled to change its response from relying on sections 27 and 40(2) to section 12 FOIA; (b) the cost to the HO of responding to the Request would have exceeded the cost limit set out in the 2004 Regs and it was therefore entitled to refuse to respond to the Request on the basis of the 2004 Regs and section 12 FOIA; and (c) the HO complied adequately with its obligations set out in section 16 FOIA.

82. Accordingly our decision is that the DN was in accordance with the law and to the extent that the notice involved an exercise of discretion the IC exercised it correctly.

83. The appeal is dismissed. SignedJudge Heald Date 6 May 2026