B e f o r e :
JUDGE ARMSTRONG-HOLMES ____________________
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HTML VERSION OF DECISION ____________________
Crown Copyright ©
Decision: The appeal is struck out under Rule 8(3)(c).
This is an application by the Respondent to strike out the Appellant's appeal under Rule 8(3)(c) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 on the basis that the appeal has no reasonable prospect of succeeding.
Chronology and Background
On 7 th May 2024, the Appellant wrote to City St. George's, University of London ("the University") and requested information in the following terms:
On 3 rd June 2024, the University responded to the Appellant's request in the following terms:
This letter acts as a Refusal Notice in respect of your Request and City will not be
The Appellant requested an internal review of that decision on 17 th June 2024. The request for a review was accompanied by a number of points which the Appellant wished to make to support the disclosure of the requested information. This was as follows:
The University acknowledged the Appellant's request for an internal review on 8 th July 2024, but an outcome to that review was not provided until 16 th January 2025. In between that period, the Appellant made a section 50 FOIA complaint to the Information Commissioner ("the Commissioner") on 20 th November 2024. The complaint itself focused on the lack of any outcome to the internal review, and on 27 th November 2024, the Commissioner refused the complaint as he considered that there had been an undue delay in the complaint being brought. However, upon considering the Appellant's request for the Commissioner to reconsider his refusal, the complaint was eventually accepted for investigation on 5 th December 2024.
On 3 rd January 2025, the Appellant informed the Commissioner that the University had notified them that it intended to provide an outcome to the internal review by no later than 16 th January 2025. The Commissioner was informed by the University that it had provided an outcome to the internal review on 16 th January 2025. The University's detailed response, addressing the points raised by the Appellant, was as follows:
Separate Topics: You have suggested that if Your Request is considered as two
On 23 rd January 2025, having received the response from the University, and having been contacted by the Commissioner, the Appellant confirmed that they wished to continue their complaint.
On 26 th January 2025, the Commissioner wrote to the Appellant and the University to confirm that he would be investigating whether the University was entitled to rely upon section 12(1) FOAI to refuse the information request. The Commissioner stated the following to the University:
The University provided its submissions in response to the Commissioner's questions on 9 th April 2025, which were as follows:
The Commissioner issued his Decision Notice (IC-348482-F8V4) on 30 th April 2025, concluding that:
The Commissioner concluded his that he did not require the University to take any further steps.
The Appeal
The Appellant's Notice of Appeal in respect of that Decision Notice was submitted to the Tribunal by email on 30 th May 2025. The grounds of appeal are stated to be as follows:
In responding to each of the four grounds advanced by the Appellant, the Commissioner's Response deals firstly with the second ground of appeal, as it relates specifically to the application of section 12(1) FOIA, and the advice and assistance provided by the University under section 16 FOIA. The Commissioner submits as follows:
The application to strike out the appeal
As part of his Response to the Notice of Appeal, the Commissioner submits that the Appellant has advanced no argument of substance, or provided any evidence, which challenges the Commissioner's finding that the University is entitled to rely on section 12(1) FOIA to refuse the request. It is submitted that the Appellant has therefore failed to set out any cogent argument as to why the Commissioner's Decision Notice is not in accordance with the law and/or why the Commissioner ought to have exercised any discretion differently. For these reasons, and the arguments set out in the Response to the grounds of appeal advanced by the Appellant in the Notice of Appeal, the Commissioner submits that the appeal should be struck out under rule 8(3)(c) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, on the basis that no part of the Appellant's case has any reasonable prospect of success.
Discussion and Conclusions
The Appellant has never provided a Reply to the Commissioner's Response under Rule 24, though this is not obligatory under the Rules, as Rule 24 simply provides an Appellant with an opportunity to reply to a response. However, Rule 8(4) requires the Appellant to have been given an opportunity to make representations in relation to the proposed striking out before the Tribunal may strike out the appeal under Rule 8(3)(c).
On 8 th August 2025, the Tribunal's Registrar directed the Appellant to confirm no later than 18 th August 2025 whether the appeal was being withdrawn or "To make representations as to why the appeal should not be struck out as having no reasonable prospect of success." . Those case management directions were given in order to progress the appeal and to provide the Appellant with an opportunity to make representations in relation to the proposed striking out of the appeal.
On 22 nd August 2025, the Appellant applied for reconsideration of the Registrar's directions of 8 th August 2025 under Rule 4(3). Judge Harris considered that matter afresh and confirmed and upheld the Registrar's directions on 2 nd December 2025. However, to date, the Appellant has still not provided the Tribunal with any representations in response to the Commissioner's application to strike out the proceedings. I am satisfied that the Appellant has been given an opportunity to do so as required by Rule 8(4) however. Indeed, the Appellant has had a more than significant period of time in which to make any representations opposing an application which was submitted to the Tribunal on 14 th July 2025.
Before I consider whether to strike out the appeal under Rule 8(3)(c), I must first remind myself of the law in relation to requests for information which are refused under section 12(1) FOIA.
Under section 1(1) FOIA, a 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. However, under section 12 FOIA, a public authority is not required to comply with section 1(1) FOIA where the cost of complying with the request would exceed the appropriate limit. Section 12 FOIA provides as follows:
Section 12 (Exemption where cost of compliance exceeds appropriate limit)
As the University is not listed in Part I of Schedule 1 FOIA, Regulation 3(3) of The Freedom of Information and Data protection (Appropriate Limit and Fees) Regulations 2004 ("the Regulations") provides that the 'appropriate limit' for this public authority is £450.
Not all costs which may be incurred in complying with a request may be taken into account. Regulation 4(3) of the Regulations provides that "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-
Regulation 4(4) provides that such costs are to be estimated at a rate of £25 per hour.
Applying these Regulations to the University, it follows that it would be entitled to refuse a request for information if complying with the request would result in it spending more than 18 hours (i.e. £450 divided by £25) on any of the tasks identified in Regulation 4(3). In this instance, the University has stated that it estimates that complying with the request would take in excess of 219 hours to perform these tasks. The sample exercise that it carried out was limited in size and scope, but it nonetheless returned a sizeable 6,559 emails. Having identified 2 minutes as an average time to review each of those emails, considering that each email varied in size, this resulted in the 219 hours identified by the University. Had the University complied with the information request, the number of emails which are likely to have been identified, and the number of hours involved is likely to have been significantly greater. Even if the time to review each email was halved to 1 minute in that sample exercise, the time that would be required to review the 6559 emails would be over 109 hours. That would still be greatly in excess of the 18 hours provided for by the Regulation in the case of the University. I am however satisfied that the estimate provided by the university to review each email, when considering that the length of each email is likely to vary significantly, is sensible and realistic. Each email would need to be read by the reviewer and consideration then given to whether any of the exemptions under Part II FOIA would apply to any of the information contained within the email. That is not necessarily something which can be identified at first glance, and may still require consultation with other departments to determine the nature of any content. However, as I have already discussed, even if this was reduced to one minute, then it would still yield results far in excess of the appropriate limit of 18 hours (£450).
The Appellant submits in his grounds of appeal that section 12 was applied unreasonably and that it was insufficiently justified. This does not appear to be the case at all, as the University's sample exercise, when applied to the full search terms and email addresses detailed within the Appellant's request would undoubtedly yield far greater results than the limited sample that was used to evidence the extent of the work that would be involved in complying with the request. The purpose of section 12 FOIA is of course to enable a public authority to refuse to comply with an information request which would place an overly burdensome weight upon it if it were to comply with that request. To some extent there is therefore some overlap with requests which are considered to be vexatious under section 14(1) FOIA. Both provisions exist so as to protect public authorities from overly burdensome requests which would, if they were not refused, result in significant time and effort being expended on providing information, which might otherwise be better spent on delivering the public service(s) that it was set up to provide.
The explanation provided by the University on 16 th January 2025, by way of an outcome to the internal review, as to why the Appellant's suggested splitting of the request into two parts would not bring the time required anywhere below the £450 limit / 18 hours was accepted by the Commissioner, and was as follows:
I have considered the Appellant's suggestion by reference to the evidence which has been provided, and I am satisfied that the suggested splitting up of the request would not yield results which would bring the work involved to a level below the appropriate limit. The request is of such a broad nature and the sample exercise conducted by the University demonstrates that the results obtained would be so large that it would be impossible for the University to comply with the request without exceeding the appropriate limit of 18 hours (£450).
As has been identified by the Commissioner, section 12(1) FOIA does not require any balancing of the public interests under section 2 FOIA. If the costs of the University complying with the request exceeds the £450 limit. The evidence here, as I have already stated, suggests that complying with the request would far exceed this limit.
I am satisfied that the University has complied with its obligations under section 10 and section 17 FOIA, and I am additionally satisfied that the University provided advice and assistance within the meaning of section 16 FOIA when it provided its initial response to the Appellant on 3 rd June 2025 under the heading 'Refining your request' (see paragraph 3 above). It is noteworthy that the Appellant's response was to decline the suggestion to narrow the scope of the request as follows:
I have considered all of the available evidence in this matter, including the Appellant's grounds of appeal and the Commissioner's Response. I must therefore consider whether "there is no reasonable prospect of the appellant's case, or part of it, succeeding" , before I may strike out the appeal under Rule 8(3)(c). For the reasons set out in the preceding paragraphs, I do not consider that there has been any breach of section 10, 16 or 17 FOIA, and therefore any appeal on those grounds is, in my view, bound to fail, and has no reasonable prospect of succeeding. The remaining question is therefore whether the appeal in respect of the Commissioner's decision that the University was entitled to rely on section 12(1) FOIA has any reasonable prospect of succeeding on appeal. For the reasons set out above, I conclude that there is no reasonable prospect of the Appellant's case succeeding.
Signed:
Judge Armstrong-Holmes
Date: 1 st April 2026
Amended on 2 April 2026