Upper Tribunal ruling clarifies 'all or nothing' under Section 11(1) FOIA

In a recent appeal under the Freedom of Information Act (FOIA), the Upper Tribunal (UT) clarified the interpretation of "so far as reasonably practicable" under section 11(1) of the Act, ruling that it constitutes an "all or nothing" standard. 

The appeal involved a request for distress calls made to the Maritime and Coastguard Agency (MCA) in the English Channel over a week, with a preference for transcribed audio if direct audio disclosure was not possible.

The core legal question revolved around whether the MCA was obligated to comply with the requester's preference for transcribed calls only if it was reasonably practicable to transcribe all the requested calls or if it had to comply to the extent reasonably practicable, potentially transcribing only some of the calls.

In interpreting the statutory language, the Judge found the requester's "sliding scale" construction of "so far as reasonably practicable" plausible when considered in isolation. However, the key consideration was interpreting the phrase within the broader context of FOIA. The Judge noted that section 12, which deals with cost estimates, refers to complying with "the request," implying a request for all the specified information. While the "sliding scale" interpretation might be tenable for section 11(1) alone, it was not for section 12. The judgment also highlighted that if a request exceeds the cost cap in section 12, the public authority's duty to advise and assist under section 16 might require suggesting a more limited request.

The UT concluded that "so far as reasonably practicable" in section 11(1) FOIA sets an "all or nothing standard." This means if it is not reasonably practicable for a public authority to provide all the requested information in the preferred format, it is not obliged to provide any part of that information in that specific format.