Derrick Welsh v The Information Commissioner

Preliminary matters

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

Appellant:

Derrick Welsh.

Appropriate Limit:

The “appropriate limit” as set out in the Fees Regulations (in this case, 18 hours’ work, as referred to in paragraph 38).

Authority:

The Financial Ombudsman Service.

Commissioner:

The Information Commissioner (the Respondent).

Decision Notice:

The Decision Notice of the Commissioner dated 17 December 2025, reference IC-385911-F7S0, 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 28).

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 28).

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 2025 , 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(1) (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 2025, the Appellant contacted the Authority and requested information in the following terms:

“ I would like to request a copy of all of the staff training and guidance material. I'm specifically interested in the topic of loss of rent but if you send everything I will locate the specific section. I have been told that there is not a policy on this matter but want to understand what training and guidance staff are given as there are inconsistencies in published decisions on your website. ”.

7.The Authority responded on 13 March 2025. It stated that that compliance with the Request would exceed the Appropriate Limit. Accordingly, it relied on section 12(1) to refuse to comply with the Request.

8.On the same date (13 March 2025), the Appellant requested an internal review.

9.The Authority responded on 13 May 2025, upholding its position.

10.On the same date (13 May 2025), 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 stated that it also sought to rely on section 14 in respect of the Request on the basis of the burden in complying with it.

12.The Commissioner subsequently issued the Decision Notice.

The Decision Notice

13.The Commissioner considered that the scope of his investigation was to consider whether, essentially, the Authority was entitled to rely on section 12 and/or section 14 to the Request.

14.The Commissioner concluded that section 12(1) was correctly applied by the Authority and accordingly that it was unnecessary to consider the Authority’s alternative reliance on section 14.

15.The Decision Notice recorded (in summary) that:

a.

the Authority explained that the Requested Information was not held in a single location but was spread across numerous systems, including its Discovery knowledge platform, learning and development databases, departmental folders and internal correspondence;

b.

the Authority provided detailed estimates showing that locating, reviewing and extracting relevant material in response to the Request would take many thousands of hours;

c.

the Commissioner accepted that the Requested Information was held across a large number of files and locations and that substantial manual work would be required to identify and extract it; and d.

the Commissioner found the Authority’s estimates to be reasonable, realistic and supported by evidence.

16.The Commissioner accordingly concluded that the work required to locate, review and extract the Requested Information would exceed the Appropriate Limit and that the Authority was therefore entitled to refuse to comply with the Request under section 12(1).

17.The Commissioner also considered whether the Authority had complied with its duty to provide advice and assistance under section 16 in respect of the Request. He found that it had done so by suggesting that the Appellant narrow the scope of the Request to guidance held in central locations, such as its Discovery platform, and focus on a specific topic rather than seeking all training and guidance material.

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

The appeal

The grounds of appeal

19.The Appellant’s grounds of appeal were based on his views that the Decision Notice was wrong because the Authority and the Commissioner wrongly assumed that the Requested Information would need to be extracted, converted or reformatted before disclosure.

20.The Appellant submitted that he had not asked for the Requested Information to be changed into other formats or extracted, but simply for the data to be sent to him and that he would convert the data himself or look at it in its current form. He argued, in essence, that it was implausible that training and guidance material was not centrally stored or readily available for copying, and that the Authority could have just sent the Discovery platform and other databases to him in response to the Request.

21.The Appellant contended that, in summary, the Authority had unnecessarily complicated matters by stating that files had to be extracted and accordingly that it was wrong to assert that compliance with the Request would exceed the Appropriate Limit.

The Tribunal’s powers and role

22.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. ”.

23.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

24.The proceedings were held by the cloud video platform. The Tribunal Panel and the Appellant joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.

25.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).

The evidence and submissions

26.The Tribunal read and took account of a bundle of evidence and pleadings. We also heard from the Appellant directly during the hearing.

27.All of the contents of the bundle were read and considered, and all of the oral submissions from the Appellant 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

28.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. ”.

29.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. ”.

30.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

31.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. ”.

32.In summary therefore, for current purposes, the Authority would be entitled to refuse to disclose the Requested Information pursuant to section 12(1) if the time involved in doing so would exceed the Appropriate Limit.

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

The Fees Regulations

34.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. ”

35.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.

36.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. ”.

37.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.

38.Summarising the above for current purposes, for the exemption to the Duty to Disclose in section 12(1) 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

39.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

Matters outside of the scope of the appeal

40.The Appellant provided his rationale for seeking the Requested Information, which was linked to an ongoing insurance dispute concerning loss of rent. He believes the Requested Information would help him understand how the Authority should assess his case and would enable him to challenge what he considers to be incorrect decisions. The Appellant referred to continuing financial losses resulting from that dispute.

41.Whilst we acknowledge the Appellant’s stated motivations in making the Request, it is important to note the general principle that FOIA is both ‘motive blind’ and ‘applicant blind’. Similarly, as we have noted, section 12 is not subject to a public interest test. Accordingly, the Appellant’s reasons for seeking the Requested Information are not relevant for the purposes of the appeal.

42.The scope of the Tribunal’s jurisdiction is as set out in paragraph 22 (and summarised in paragraph 23) and, in essence, relates to the lawfulness of the Decision Notice.

43.The Tribunal’s role was not to determine whether or not any of the Authority’s record keeping or administrative procedures are complete, adequate or well organised. Rather, our role was to determine the relevant issues set out below.

Outline of relevant issues

44.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(1) to refuse to comply with the Request.

45.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(1)

46.In essence, the Appellant’s appeal is based on the premise that the Authority should have been able to provide access to its existing training and guidance materials by providing all of the data which it holds containing the Requested Information, without needing to undertake any exercise to identify and extract it, which could have been done with minimal effort. The Appellant therefore considered that the Commissioner was wrong to consider that the Authority could rely on section 12.

47.In summary, the Appellant’s main submissions were that:

a.

the Request sought the relevant information itself, not a reformatted or specially prepared version of it;

b.

the Authority could simply provide the existing databases or repositories containing the training and guidance material and allow him to search through them himself;

c.

the Authority had artificially inflated the estimated cost of compliance with the Request by including the time required to extract, save and convert documents into shareable formats, and such work was unnecessary because he would accept the Requested Information in its existing form;

d.

the Commissioner accepted the Authority’s cost estimates without properly scrutinising the assumption that extraction and conversion were required.

48.As we have referred to, it was not the role of the Tribunal to make any determination regarding the Authority’s record keeping or administrative procedures. The Tribunal was required to assess the Authority’s response to the Request based on how it actually stores the relevant information. Accordingly, even if the Appellant believes that the information should be held more efficiently, that is not relevant to our assessment of the application of section 12.

49.It is also important to note that the Authority was correct to assess, in respect of a potential response to the Request, what would be required to locate and extract the Requested Information (and not simply provide all its databases or repositories containing the Requested Information, as suggested by the Appellant). This is because the Authority needs to ensure that it is not disclosing information which should not be publicly disclosed; for example, because it is confidential or otherwise sensitive, or it contains personal data (as such disclosure could contravene data protection laws). Also, for the purposes of FOIA, a public authority is required to determine its response with regard to the specific information request and it is entitled to not disclose more information than was requested, even if doing so might be more efficient.

50.A further consideration which is relevant to the points made in the preceding paragraph is that it is an established legal principle that disclosure of information under FOIA is, effectively, disclosure to the public (in other words, to the ‘world at large’). Indeed, case law has also established that, when considering the consequences of potential disclosure of information under FOIA, it is an error of law to ignore disclosure to persons other than the requester of the information in question.

51.For the above reasons, we do not accept the Appellant’s arguments that the Authority could simply have disclosed the entirety of its databases or repositories containing the Requested Information. Rather, in responding to the Request, the Authority would have to identify, retrieve and extract the Requested Information.

52.In considering whether the Authority was entitled to rely on section 12(1), 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).

53.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).

54.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.

55.As reflected in the Decision Notice, the Authority gave explanations regarding the various locations in which the Requested Information might be held, and it provided detailed estimates of the costs of complying with the Request. In summary, the Authority’s estimates were as follows:

a.

retrieving and extracting information in scope held in ‘Discovery’: £3,750 (150 hours);

b.

identify, locate and retrieve information in scope held in its Learning and Development Department (internal learning platform): £25,833 (1,033.3 hours);

c.

identify, locate and retrieve information in scope held in its Learning and Development Department (core learning and development folder): £259,166 (10,366.6 hours);

d.

to capture information held by individual departments: £2,600 (104 hours); and e.

to capture relevant information held in internal correspondence: £645 (25.8 hours).

56.The total estimated cost of compliance was therefore £291,994 (11,679.7 hours). The Authority also caveated these estimates, stating that they likely still do not cover every search required to locate everything within the scope of the Request.

57.We accept the Authority’s explanation as to the locations it would need to search for the Requested Information, as well as the estimates given for seeking to identify, retrieve and review relevant records. We are satisfied that the estimates relied upon were not speculative. They were based upon enquiries of relevant staff, testing exercises and knowledge of the systems involved. We find that the Authority produced a detailed and evidence-based assessment of those costs and that the Requested Information would be dispersed across numerous repositories, platforms, folders and email systems.

58.Accordingly, we find the Authority’s estimates that the cost of compliance would require thousands of hours of work to be reasonable (and taking into account the scope of the Request, as we refer to below). Even if the actual time required were significantly less that the estimates provided by the Authority, in our view it is evident that the time involved in complying with the Request would still considerably exceed the Appropriate Limit.

59.In contrast, the Appellant did not provide any practical alternative methodology showing how the Requested Information could be located, retrieved and extracted within the Appropriate Limit (other than his suggestion that the Authority simply provide all its databases or repositories containing the Requested Information).

60.We also find that the Request was very broad in its scope. It sought all of the Authority’s staff training and guidance material. Even if the Requested Information was limited to materials relating to the topic of loss of rent (which the Appellant stated in the Request that he was specifically interested in), it was nevertheless seeking all of the Authority’s staff training and guidance material on that topic. The Authority explained that its records were not categorised to enable ready identification of which materials were relevant to that topic. We also note that the mere exercise of reviewing correspondence returned by searches for the term “loss of rent” alone was estimated at approximately 25.8 hours, which itself exceeds the Appropriate Limit.

61.We therefore find that the breadth of the Request was also a relevant factor relating to the amount of work required to respond to the Request. Taking this into account, in conjunction with the information provided by the Authority, we conclude that it was reasonable for the Authority to estimate that responding to the Request would exceed the Appropriate Limit.

62.For the above reasons, we consider that the Commissioner correctly concluded in the Decision Notice that the Authority could rely on section 12(1) to refuse to comply with the Request.

Whether the Authority complied with section 16

63.As we have noted, the Commissioner found that the Authority had complied with its duties under section 16 in respect of the Request.

64.As we also noted, that finding was not challenged by the Appellant, but we have addressed this issue for completeness. In general, where section 12(1) is relied on, a public authority should advise the requester as to how their request could be refined to bring it within the relevant cost limit.

65.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.

66.In considering that question, we take into account that the Request was very broad in scope. We have also assessed 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.

67.As reflected in the Decision Notice, the Authority suggested that the Appellant may wish to consider refining the Request to guidance material held in central locations, such as its Discovery platform, on a specific topic.

68.However, in our opinion, the Authority did not provide the Appellant with adequate explanations regarding where the Requested Information might be held, or the differences in the locations where it might be stored (including with reference to why different materials were stored in different locations, or further explanation regarding the nature of its Discovery platform), in order to help him refine his Request. In short, the relevant explanations provided by the Authority to the Commissioner as reflected in the Decision Notice were not provided to the Appellant in response to the Request. For similar reasons, we also consider that the Authority did not adequately explain to the Appellant why it could not respond to the Request within the Appropriate Limit. The Authority also did not suggest to the Appellant that the Request could be refined by limiting the date range for relevant materials.

69.For the above reasons, we find that the Authority did not comply with its duties under section 16 to provide reasonable advice and assistance in respect of the Request.

70.However, that finding is not material to our overall findings in the appeal. This is because we also find that, at the relevant times, the Appellant was not inclined to refine the scope of the Request in any event. Following the Authority’s refusal of the Request, and the associated advice and assistance which it did provide, the Appellant persisted in seeking everything within the scope of the Request as originally worded. This was linked to his view (maintained in respect of the appeal) that the Requested Information could readily be provided with minimal effort by simply disclosing all of the relevant databases or repositories.

71.Moreover, we also consider that the Authority could not have directed the Appellant to any specific materials it held, given that information falling within the scope of the Request could potentially be held in a significant number of locations, files and folders. As we have noted, even limiting the scope of the Request to materials on the topic of loss of rent would not have brought the Request within the Appropriate Limit.

72.Accordingly, given the breadth of the Request and the difficulties we have outlined regarding the Authority seeking to locate and retrieve the Requested Information, we do not consider that the Request could be refined in order to bring it within the Appropriate Limit in any event.

73.Therefore, although we consider that the Authority failed to comply with its duty to provide reasonable advice and assistance under section 16, that failure had no bearing on our finding that section 12(1) was engaged in respect of the Request. For the same reason, we conclude that the Commissioner’s finding in the Decision Notice regarding section 16 was not material to his ultimate finding that the Authority could rely on section 12(1) in respect of the Request.

74.For the above reasons, we consider that the Commissioner erred in concluding in the Decision Notice that the Authority had complied with section 16 in respect of the Request. This finding does not, however, affect our decision regarding the ultimate conclusion reached in the Decision Notice (and in respect of the material issues in the appeal), given that our decision results in the same outcome – namely, that the Authority can rely on section 12(1) to refuse to provide the Requested Information. As we are accordingly dismissing the appeal, we conclude (having regard to the provisions of section 58) that there is no basis for us to substitute the Decision Notice notwithstanding that finding.

Section 14

75.Having determined that the Decision Notice correctly concluded that the Authority could rely on section 12, it is unnecessary for us to consider the Authority’s alternative reliance on section 14 in respect of the Request.

Final conclusions

76.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(1). Whilst we find that the Commissioner erred in concluding that the Authority had complied with section 16 in respect of the Request, this had no bearing on our finding that section 12(1) was engaged in respect of the Request and that the Authority was accordingly entitled to refuse to comply with it.

77.We therefore dismiss the appeal.

Signed: Stephen Roper Date: 3 September 2026

Judge of the First-tier Tribunal