Reuben Kirkham v Information Commissioner (Section 12 of FOIA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Jacobs |
| Neutral Citation | [2018] UKUT 126 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Information rights,Information rights - Freedom of Information - exceptions,Jacobs,E |
| Date | 11 April 2018 |
| Published date | 02 May 2018 |
Reuben Kirkham v Information Commissioner (Section 12 of FOIA)
[2018] UKUT 126 (AAC)
UPPER TRIBUNAL CASE NO: GIA/1055/2016
1
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
This decision is given under section 11 of the Tribunals, Courts and Enforcement
Act 2007:
The decision of the First-tier Tribunal under reference EA/2015/0048, made on 19
January 2016, did not involve the making of an error on a point of law.
I lift the stay on the appeal in GIA/0649/2016. I allow Mr Kirkham to make any
submissions or applications on that appeal within one month of the date when
this decision is issued to him.
REASONS FOR DECISION
1. This has been a fascinating case. The arguments could be characterised as a
battle over the way in which the Freedom of Information Act 2000 (FOIA from
now on) should be interpreted and applied. On the one side, Mr Kirkham argued
for what I am going to call a rigorous scientific approach; on the other side, Mr
Paines for the Information Commissioner argued for a traditional legal approach.
I have decided that there is much of value in Mr Kirkham’s approach, but that it
operates at the evidential level, not at the level of interpretation.
A. The legislation
2. The relevant provisions of FOIA and the Regulations made under sections
12 and 13 are set out in Appendix A and Appendix B.
B. History and background
3. On 12 June 2014, Mr Kirkham asked Cambridge University to provide the
information that it held relating to proposals to the Engineering and Physical
Sciences Research Council (EPSRC) in response to its Doctoral Training Call.
The request was made under FOIA. Specifically, he asked the University to
provide the following information for each proposal:
1. The section(s) of the proposal which were directed at Equality and
Diversity, noting EPSRC’s detailed instructions which required this to be
explicitly considered.
2. Any drafts of the section(s) noted in 1.
3. Any email correspondence in relation to these section(s), including any
advice provided by the University explicitly in respect of this proposal.
4. Any correspondence with EPSRC in furtherance of this matter
(equality and diversity) in relation to this specific call, or otherwise relied
upon for writing the proposal.
Reuben Kirkham v Information Commissioner (Section 12 of FOIA)
[2018] UKUT 126 (AAC)
UPPER TRIBUNAL CASE NO: GIA/1055/2016
2
Please note that you may, if it is easier or more efficient for you to do so,
provide the proposal and its draft in totality.
The University refused, relying on section 12 of FOIA. It did, though, offer to
provide the answer to Mr Kirkham’s first question.
4. Mr Kirkham made a complaint to the Information Commissioner. The
Commissioner investigated with the University how it had made its estimate of
the expected costs of complying with the request. The Commissioner issued a
decision notice on 17 February 2015, confirming that the University had dealt
with the request in accordance with the requirements of Part I of FOIA.
5. Mr Kirkham exercised his right of appeal to the First-tier Tribunal. It first
issued what it called a Preliminary Decision, as part of which it identified further
questions that it asked the Commissioner to put to the University. When the
answers were provided, the tribunal made its final decision on 19 January 2016,
dismissing the appeal.
6. Mr Kirkham applied for permission to appeal to the Upper Tribunal. This
was refused by the First-tier Tribunal, but was the subject of an oral hearing
before Upper Tribunal Judge Turnbull on 28 April 2017. His decision was:
My decision, for the reasons set out above, is therefore to give permission to
appeal in respect of Grounds 1 to 6 of Mr Kirkham’s grounds of appeal (i.e.
those set out under his ‘Theme 1’), but to refuse permission to appeal in
respect of all other grounds.
He also gave permission to appeal in GIA/0649/2016, which relates to costs. For
convenience, Grounds 1 to 6, aka Theme 1, can be found at pages 16 to 18 of the
Upper Tribunal’s papers.
7. Following Judge Turnbull’s retirement, the case was transferred to me and I
held an oral hearing on 26 February 2018. Mr Kirkham attended and spoke on
his own behalf. Rupert Paines of counsel represented the Information
Commissioner. I am grateful to them both for their submissions. After the
hearing, Mr Kirkham was provided with a copy of the recording of the hearing on
the basis of which he made his final written submissions.
8. Mr Kirkham did address me on some matters on which Judge Turnbull had
refused permission to appeal. I am not going to deal with them. He gave
permission only on what was included within the various headings used by Mr
Kirkham: Theme 1, Grounds 1 to 6, and Head III. The judge dealt with them in
paragraphs 24 to 46 of his reasons.
9. For completeness, Cambridge University did not wish to be a party before
either the First-tier Tribunal or the Upper Tribunal.
C. The right to information - failure cannot be the only option
10. Mr Kirkham’s argument was based on the proposition that no search could
be guaranteed to produce all the information held. He set out his proposal for
how a public authority should respond to a request. As an example, he explained
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...organisational structure or record-keeping practice in public authorities” (at[42]). 32. In Kirkham v Information Commissioner [2018] UKUT 126 (AAC) (Kirkham) the Upper Tribunal rejected the Appellant’s argument that the public authority should buy in computer or other expertise required to......