Inner House refuses appeal against denied FOI request on arrests of police officers based on cost of compliance

About this case:

• Citation:
  [2025] CSIH 26
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Malcolm

Alexandria Gallagher made a FOI request of the Police Investigations and Review Commissioner, which was declined based on the estimated cost of compliance. She contended that with an improved system of data retrieval the cost of compliance would be reasonable, and that the Commissioner failed to have regard to the public interest in disclosure of the information.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Malcolm and Lord Armstrong. The petitioner and appellant appeared as a party litigant with a lay assistant, while the respondent was represented by Welsh, advocate.

Lack of transparency

The petitioner’s request was for the PIRC to provide her with the number of police officers it had arrested since its inception in 2013. She was informed that her request was refused because it was estimated that it would cost £108,390 to comply with the request. This was based on it requiring a review of 433,588 files, the information not having been recorded as a matter of routine. Under the 2002 Act, a request could be refused if the reasonably estimated cost of compliance exceeded £600, based on £15 per hour of an employee’s time.

After the matter was referred to the Commissioner, he concluded that the cost estimate provided by PIRC was reasonable, having regard to its current recording and data retrieval procedures. The appellant argued that the PIRC’s current recording system was out of date, inefficient, and conducive to a lack of transparency that prevented a proper debate about police conduct. The appellant made further complaints regarding breach of natural justice, bias, irrationality, and unreasonableness on the part of the Commissioner.

It was noted that in an Upper Tribunal case from England, Kirkham v Information Commissioner (2018), it was argued that Cambridge University could have easily obtained software that would convert its records into a more accessible format. There, the UT held that the focus was on the authority, how it held the information, and how it would retrieve it, rather than a purely objective question of what costs it would be reasonable to expect to incur.

Correctly identified task

Lord Malcolm, delivering the opinion of the court, began by observing: “Many of Ms Gallagher’s grounds of appeal are directed at alleged failings of PIRC. She asks the court to declare that it owes a statutory duty of care to keep the public informed about the conduct of police officers. The court has no power to do that. PIRC’s functions are set out in section 62 of the Police and Fire Reform (Scotland) Act 2012. In any event this appeal concerns the Commissioner’s decision when responding to Ms Gallagher’s complaint. PIRC are not parties to these proceedings and the court cannot embark on a review of its performance in general, nor of its record-keeping and data retrieval systems.”

He continued: “We understand the concerns expressed by Ms Gallagher, not least since the less efficient a public authority’s systems are, the more likely it is that the cost limit will be exceeded; a limit which we note has not been increased since the Act came into force over 20 years ago. However, the Commissioner is bound by the terms of section 12(1) which provides that a public authority need not comply with a request for information if it estimates that the cost of complying would exceed £600.”

Considering the Commissioner’s duties in more detail, Lord Malcolm said: “We consider that the Commissioner did not err in his acceptance of the information provided by PIRC and the way he assessed its handling of the request. Any cost estimate required to proceed on the basis of the recording system used by PIRC, not a more efficient one of the kind desiderated by Ms Gallagher. In short, the Commissioner correctly identified his task, namely whether PIRC complied with its duties under the Act when refusing the request based on the excessive cost of compliance, and he carried it out free of any error in law. It was a decision he was entitled to make.”

He concluded: “The Commissioner would have erred had he concluded that the information should be disclosed because the cost of compliance could be reduced to an amount below the limit if PIRC upgraded its systems. In short, the Commissioner does not police PIRC’s data management procedures, only whether it complied with its duties under the Act, which in turn must depend on the terms of the relevant legislation.”

For these reasons, the appeal was refused.