Bjoern-Victor Norgren v The Information Commissioner & Anor

Preliminary matters

1.In this decision, we use the following terms to denote the meanings shown:

Appellant:

Bjoern-Victor Norgren.

Appropriate Limit:

The “appropriate limit” as set out in the Fees Regulations (in this case, 18 hours’ work, as referred to in paragraph 39).

Authority:

National Police Chiefs’ Council (the Second Respondent).

Commissioner:

The Information Commissioner (the First Respondent).

Decision Notice:

The Decision Notice of the Commissioner dated 10 July 2024, reference IC-297361-R8X5, relating to the Request.

Duty to Inform:

The duty of a public authority to confirm whether or not it holds information which is requested, pursuant to section 1(1)(a) (set out in paragraph 29).

Duty to Disclose:

The duty of a public authority to communicate requested information which it holds, pursuant to section 1(1)(b) (set out in paragraph 29).

Fees Regulations:

The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulation 2004.

FOIA:

The Freedom of Information Act 2000 .

Request:

The request for information made to the Authority by the Appellant dated 1 March 2024 , as referred to in paragraph 6.

Requested Information:

The information which was requested by way of the Request.

2.Unless the context otherwise requires (or as otherwise expressly stated), references in this decision:

a.

to numbered paragraphs are references to paragraphs of this decision so numbered;

b.

to a regulation are references to the applicable regulation of the Fees Regulations;

c.

to a section are references to the applicable section of FOIA;

d.

to the Commissioner’s “investigation” mean the Commissioner’s investigation, for the purposes of section 50, of the Appellant’s complaint relating to the Authority’s response to the Request.

3.We refer to the Information Commissioner as ‘he’ and ‘his’ to reflect the fact that the Information Commissioner was John Edwards at the relevant times.

Introduction

4.This is an appeal against the Decision Notice, which (in summary) held that the Authority was entitled to refuse to comply with the Request pursuant to section 12(2) (exemption where cost of compliance exceeds appropriate limit).

Background to the appeal

5.The background to the appeal is as follows.

The Request

6.On 1 March 2024, the Appellant contacted the Authority and requested information in the following terms:

“1.

What is the percentage of security/surveillance cameras with Country of Origin China used by UK Police? How has this percentage changed between 2021 and 2024?

2.What active steps has been taken on ending reliance on Chinese imports? What follow up steps are continuously being taken to ensure proper implementation long term? ("Project Defend”)

3.Has UK Police increased sourcing of UK/EU/US-manufactured security/surveillance cameras? If so, what percentage increase since 2021? If not, provide percentage of decrease and reason for decrease

4.What active steps are being taken to stop sourcing the following types of products from China? Hikvision, Dahua and Huawei ”.

7.The Authority responded on 19 March 2024. It stated that it did not hold the Requested Information.

8.On the same date (19 March 2024), the Appellant requested an internal review.

9.The Authority responded on 27 March 2024, upholding its position.

10.On the same date (27 March 2024), the Appellant contacted the Commissioner to complain about the Authority’s response to the Request.

11.During the course of the Commissioner's investigation, the Authority wrote to the Appellant (on 21 June 2024) with a revised response to the Request, in which it advised that it was now relying upon section 12(2) on the basis that complying with the Request would exceed the cost limit. In summary, the Authority stated that:

a.

there is no central function within the Authority which captured the Requested Information;

b.

to ascertain whether the Requested Information is held would require exhaustive searches which would exceed the threshold of 18 hours.

12.Following the Authority’s revised response to the Request, the Commissioner contacted the Appellant to query whether he wished to proceed with his complaint. The Appellant stated that he wished the complaint to proceed on the basis on “national security grounds” and that it was in the public interest.

13.The Commissioner subsequently issued the Decision Notice.

The Decision Notice

14.In summary, the Commissioner concluded in the Decision Notice that, having considered the Authority’s arguments regarding the Requested Information not being stored centrally and regarding what searches would need to be undertaken, the Authority’s estimate that it would exceed the Appropriate Limit to ascertain if the Requested Information was held was reasonable.

15.The Decision Notice also reflected that:

a.

the Commissioner had also enquired as to whether the Authority had purchased any relevant equipment itself for use on its own premises;

b.

the Authority had advised that its central office was in London on the floor of a building which is rented and not owned and that another office it used was also rented and any cameras on the properties were not owned by the Authority;

c.

the Commissioner therefore accepted that the Authority was unable to provide any information about its own camera/security equipment, as it does not have any.

16.The Commissioner also considered that the Request could not be meaningfully refined such that the Requested Information could be provided within the Appropriate Limit, on the basis that the Requested Information is not readily accessible as it is not recorded by the Authority in the format which was requested.

17.The Commissioner therefore concluded in the Decision Notice that:

a.

the Authority was entitled to rely on section 12(2) in respect of the Request; and b.

the Authority had complied with its obligations under section 16 to offer advice and assistance in respect of the Request.

18.The Decision Notice did not require the Authority to take any steps.

The appeal

The grounds of appeal

19.The Appellant argued that the Decision Notice was wrong because

“ Firstly, as a matter of significant public interest, the public has a right to know the extent to which their security and privacy are being compromised by the use of foreign-made surveillance equipment. Secondly, the argument that producing this information would be too costly is not valid, especially when considering the potential consequences of continued reliance on Chinese-made technology in our policing infrastructure. ”

The Tribunal’s powers and role

20.The powers of the Tribunal in determining the appeal are set out in section 58 , as follows:

“(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. ”.

21.In summary, therefore, the Tribunal’s remit for the purposes of this appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal’s role is to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned).

Mode of hearing

22.The proceedings were held by the cloud video platform. The Tribunal Panel, the Appellant, Mr Palmer (on behalf of the Authority) and the witness (see paragraph 26) joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.

23.The Commissioner did not attend the hearing and was not represented (having previously indicated that he was content for the appeal to be determined on the papers).

24.There were some minor interruptions during the hearing, including instances of momentary connection freezes, but the Tribunal was satisfied that nothing had been missed.

The evidence and submissions

25.The Tribunal read and took account of a bundle of evidence and pleadings (as well as a separate bundle index).

26.The bundle contained a witness statement provided on behalf of the Authority. The witness statement was given in their capacity as Deputy Manager, National Police Freedom of Information and Data Protection Unit. The witness also gave evidence in person at the hearing. It is not necessary for us to identify this witness by name in this decision - therefore we merely refer to them below as “the witness” and we mean no disrespect to them in doing so.

27.We heard from the Appellant directly. We also heard oral submissions from Mr Palmer on behalf of the Authority.

28.All of the contents of the bundle were read and considered, and all of the submissions from the parties and the witness’s evidence were taken into account, even if not directly referred to in this decision.

The statutory framework

We acknowledge the Practice Direction dated 4 June 2024 ( https://www.judiciary.uk/guidance-and-resources/practice-direction-from-the-senior-president-of-tribunals-reasons-for-decisions/ ) and particularly paragraph 9, which refers to the First-tier Tribunal not needing to specifically refer to relevant authorities. We include references to the applicable legislative framework, to provide relevant context, but have accordingly not referred to the applicable case law.

General principles

29.Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides:

“ Any person making a request for information to a public authority is entitled— (a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b)

if that is the case, to have that information communicated to him. ”.

30.In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, those entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority. Section 1(2) provides:

“ Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14. ”.

31.Accordingly, section 1(1) does not provide an unconditional right to be told whether or not a public authority holds any information, nor an unconditional right of access to any information which a public authority does hold. The rights contained in that section are subject to certain other provisions of FOIA, including section 12.

Section 12 - exemption where cost of compliance exceeds appropriate limit

32.Section 12 addresses a potential exemption to the Duty to Inform and a potential exemption to the Duty to Disclose. So far as is relevant for current purposes, section 12 provides:

“(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.

…

(5)The Minister for the Cabinet Office may by regulations make provision for the purposes of this section as to the cost to be estimated and as to the manner in which they are to be estimated. ”.

33.In summary therefore, for current purposes, the Authority would be entitled to either:

a.

refuse to confirm if it holds the Requested Information pursuant to section 12(2) ; or b.

refuse to disclose the Requested Information pursuant to section 12(1), if the time involved in doing so would exceed the Appropriate Limit.

34.Section 12 is not subject to a public interest test.

The Fees Regulations

35.The Fees Regulations, prescribed pursuant to section 12(5), are applicable for the purposes of section 12. Regulation 3 prescribes the “appropriate limit” referred to in section 12(1) and section 12(2). It states:

“(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. ”

36.For current purposes, the “appropriate limit” for the Authority is £450 because it is not a public authority which is listed in Part I of Schedule 1 to FOIA.

37.Regulation 4 has effect in any case in which a public authority proposes to estimate whether the cost of complying with a request for information would exceed the “appropriate limit”. So far as is relevant, regulation 4 provides:

“(3)

In a case in which this regulation has effect, a public authority may, for the purpose of its estimate, take account only of the costs it reasonably expects to incur in relation to the request in– (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.

(4)To the extent to which any of the costs which a public authority takes into account are attributable to the time which persons undertaking any of the activities mentioned in paragraph (3) on behalf of the authority are expected to spend on those activities, those costs are to be estimated at a rate of £25 per person per hour. ”.

38.Accordingly , not all costs which may be incurred in complying with a request for information may be taken into account. Only the activities set out in regulation 4 can be taken into account when estimating the cost of compliance for the purposes of the “appropriate limit”. In estimating the cost for the time spent in undertaking those activities, a rate of £25 per person per hour applies.

39.Summarising the above for current purposes, for the exemption to the Duty to Inform in section 12(2) to apply, the ‘estimated cost’ means the Authority undertaking more than 18 hours on the specified activities (18 hours being the “appropriate limit” of £450, divided by the £25 hourly rate).

Section 16 – duty to provide advice and assistance

40.Section 16(1) provides:

“ 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. ”.

Discussion and findings

Outline of relevant issues

41.In accordance with the remit of the Tribunal to which we have referred, the primary issue which we needed to determine in the appeal was whether the Commissioner was correct to conclude, in the Decision Notice, that the Authority was entitled to rely on section 12(2) to refuse to comply with the Request.

42.The Decision Notice also concluded that the Authority had complied with its obligations under section 16 in respect of the Request. Whilst this was not challenged by the Appellant, we nevertheless also address this issue for completeness.

Whether the Authority was entitled to rely on section 12(2)

43.In summary, the material aspects of the Appellant’s submissions were that:

a.

the Requested Information concerns a matter of substantial public interest and national security, and the public is entitled to know the extent to which policing relies upon Chinese-manufactured surveillance equipment, as this compromised the public’s security and privacy;

b.

the Authority ought to know what equipment is being used throughout policing and ought to maintain accurate records and inventories;

c.

it was implausible that the Requested Information is not available centrally.

44.In essence, the Appellant contended that the Requested Information must exist somewhere within policing and that the Authority should be required to determine that and provide it. He also considered that the Authority should not be able to rely on section 12 to withhold the Requested Information because of the importance of the issues raised and the potential implications for national security and public confidence.

45.As we have noted, section 12(2) is not subject to a public interest test. Accordingly, whilst we recognise the Appellant’s concerns regarding the public interest in the Requested Information or regarding issues of national security or privacy, those arguments are not relevant to the question of whether the exemption in section 12(2) was engaged in respect of the Request.

46.Rather, in considering whether the Authority was entitled to rely on section 12(2), it is necessary to determine whether the Authority reasonably estimated that the cost of complying with the Request would exceed the Appropriate Limit (as part of our assessment as to whether the Commissioner correctly concluded in the Decision Notice that the Authority could rely on section 12).

47.An estimate of time given by a public authority must be considered with regard to the specific circumstances of the case. This includes taking into account how the public authority in question holds the information and how it would retrieve it. It is also necessary to consider whether the estimate included any costs that were either not reasonable or not related to the matters that may be taken into account pursuant to regulation 4(3).

48.An estimate also involves something more than a guess or an arbitrarily selected figure. It requires, in essence, a process to be undertaken which comprises two stages. The first stage is an investigation which will need to cover matters such as the amount of information in question and where it is located. The second stage is an exercise of assessment and calculation which involves making an informed and intelligent assessment of how many hours are likely to be needed to extract the information. The concept of ‘reasonableness’ is a central element.

49.As we have noted, the Authority’s position was (in essence) that there is no central function within the Authority which captured the Requested Information and searching to ascertain whether it is held would exceed the Appropriate Limit.

50.In summary, the witness gave evidence was to the effect that:

a.

the Authority is a coordinating body, not an operational police force, and information is spread across numerous committees, portfolios and working groups hosted by individual police forces;

b.

the Authority’s own databases do not contain the Requested Information;

c.

enquiries were made of the two most relevant portfolios: the National Surveillance Lead and the CCTV Working Group, and neither held the Requested Information;

d.

if any of the Requested Information exists, it would likely be held on systems belonging to individual police forces rather than the Authority;

e.

to establish conclusively whether any information was held would require contacting large numbers of portfolios and working groups individually;

f.

estimates had been made regarding how long it would take to make those enquiries; and g.

based on those estimates, ascertaining whether the Requested Information was held would exceed the Appropriate Limit.

51.We accept the witness’s evidence on the above points. The witness was able to provide a first-hand account of the difficulties in trying to ascertain whether the Requested Information was held. We found the witness’s evidence to be clear and credible. Also, their explanation of relevant matters, including the nature and structure of the Authority and information being spread across numerous committees, portfolios and working groups was not challenged by any contrary evidence.

52.We therefore find that, if the Authority held any information within the scope of the Request, it would likely be dispersed among those committees, portfolios and working groups and on systems controlled by local police forces. We also conclude that determining whether the Requested Information exists would require extensive enquiries to be made of those committees, portfolios and working groups individually and we accept the witness’s evidence of the estimated time involved in making such enquiries.

53.In contrast, the Appellant did not provide any practical alternative methodology showing how the existence of any Requested Information could be ascertained within the Appropriate Limit. The Appellant’s arguments were directed principally to the desirability of the Requested Information being available and the importance of the subject matter, but those arguments do not affect the matters we have referred to regarding the costs estimate for ascertaining whether the Requested Information was held by the Authority.

54.We also find that the Request was very broad in its scope. It sought information extending across all UK policing in relation to security/surveillance cameras which are used (including changes in use over several years), as well as procurement decisions and strategic policies (including reference to “Project Defend”) relating to security/surveillance cameras. The Request was not confined to any particular police force, project or portfolio and the Requested Information would extend to numerous forms of surveillance equipment and numerous operational areas across policing, including custody suites, buildings, vehicles, drones and covert operations.

55.We therefore find that the breadth of the Request was also a relevant factor relating to the amount of work required merely to determine whether the Requested Information is held. Taking this into account, in conjunction with the witness’s evidence, we conclude that it was reasonable for the Authority to estimate that enquiries to ascertain whether the Requested Information was held would exceed the Appropriate Limit.

56.We would also briefly observe that the Appellant’s submission’s placed reliance upon reports indicating that reviews were being undertaken concerning surveillance technology, including with regard to “Project Defend”. The witness was unable to comment on the Appellant’s reference to “Project Defend” as they had no relevant knowledge of that (as recorded in the Decision Notice, the Authority advised that this is a Home Office initiative). Even if such reviews or initiatives exist (and, to be clear, we make no finding in that regard), this does not establish that the Authority holds the Requested Information. Nor would this undermine the Authority’s evidence concerning the practical burden of determining whether the Requested Information is held, as we have referred to.

57.For the above reasons, we consider that the Commissioner correctly concluded in the Decision Notice that the Authority could rely on section 12(2) to refuse to comply with the Request.

Whether the Authority complied with section 16

58.As we have noted:

a.

the Commissioner found that the Authority could not provide any reasonable advice and assistance in order to refine the scope of the Request to bring it within the Appropriate Limit and accordingly that the Authority had complied with its duties under section 16; and b.

that finding was not challenged by the Appellant.

59.We agree with the Commissioner's conclusion in the Decision Notice regarding section 16.

60.It is important to note that the duty to provide advice and assistance under section 16(1) is not an absolute one; the duty extends only so far as it would be reasonable for a public authority to provide advice and assistance. The relevant question is therefore to what extent it was reasonable for the Authority to provide advice and assistance in respect of the Request.

61.In considering that question, we find that the Request was unambiguous and did not require the Authority to seek clarification as to the information which was sought. The Request was clearly worded, and we consider that the information sought was explicit and therefore that no other clarification was necessary.

62.We have also assessed, in considering that question, whether it was reasonable for the Authority to provide the Appellant with advice and assistance to help him reframe the Request in a way which could bring it within the Appropriate Limit. Given the breadth of the Request and the difficulties we have outlined regarding the Authority needing to ascertain if the Requested Information was held, we consider that there was no feasible alternative way of refining the Request in order to bring it within the Appropriate Limit.

63.For the same reasons, we do not consider that any further advice and assistance could reasonably have been expected to have been provided by the Authority in connection with the Request.

64.For the above reasons, we consider that the Commissioner correctly concluded in the Decision Notice that the Authority had not breached section 16.

Final conclusions

65.For all of the reasons we have given, we find that the Decision Notice was correct to determine that the Authority was entitled to rely on section 12(2) to refuse to comply with the Request and that the Authority had not breached section 16 in respect of the Request.

66.We therefore dismiss the appeal.

Signed: Stephen Roper Date: 3 September 2026

Judge of the First-tier Tribunal