260409 The FoIA Loop-Hole Tribunal Submission

09/04/2026 – Tribunal Appeal & Skeleton Argument

Contents

IN THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS)

Respondent: Information Commissioner
Decision Notice: IC-405539-W4V9 (1 April 2026)

NOTICE OF APPEAL

1. Decision appealed

The Appellant appeals the Decision Notice of 1 April 2026, which found that Staffordshire Police failed to conduct adequate searches but declined to consider the application and subsequent withdrawal of section 14(1) FOIA.

2. Outcome challenged

The Appellant does not challenge the finding that searches were inadequate.
The appeal concerns the failure to consider a material and relevant issue, namely:

  1. the role of section 14(1) in causing the absence of searches and the resulting inability to determine whether information was held at the time of the request.

3. Grounds of appeal

Ground 1 – Failure to consider relevant considerations

The Commissioner failed to consider the application and withdrawal of section 14(1), despite it being the reason no searches were undertaken.

This was a material factor directly relevant to the determination under section 1(1)(a) FOIA.

Ground 2 – Inadequate reasoning

The Decision Notice does not explain:

  1. why no searches were undertaken at the time of the request
  2. whether reliance on section 14(1) without enquiry was appropriate
  3. how the authority could later rely on “not held”

The reasoning is incomplete.

Ground 3 – Misapplication of evidential test

The Commissioner applies the balance of probabilities test without addressing that:

  1. no contemporaneous enquiries were undertaken
  2. the evidential position is now degraded
  3. the authority cannot determine whether information existed

Ground 4 – Procedural gap

The case reveals a sequence:

  1. section 14 applied
  2. no searches undertaken
  3. time passes
  4. retention processes continue
  5. position revised to “not held”

The Appellant submits that:

this creates a procedural gap whereby the question of whether information was held may never be properly determined.

4. Wider context

The Appellant notes, at a general level, that section 14 appears to be relied upon with increasing frequency across policing bodies.

Where section 14 is applied early and later withdrawn without examination, the sequence identified in this case may arise more widely.

5. Remedy sought

The Appellant seeks:

  1. A finding that the Commissioner failed to consider relevant matters
  2. A direction to reconsider the case including the application of section 14
  3. Such further relief as the Tribunal considers appropriate

Appellant’s Skeleton Argument

IN THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS)

Respondent: Information Commissioner
Decision Notice: IC-405539-W4V9 (1 April 2026)

Issue

Whether the Commissioner erred by failing to consider the cause of the absence of searches when determining whether information was held.

Key facts

  1. Request made: 14 July 2025
  2. Refused under s14
  3. No searches undertaken
  4. s14 withdrawn after ICO involvement
  5. “Not held” position adopted
  6. Authority unable to determine whether information existed

ICO finding

  1. Searches inadequate
  2. But s14 not examined

Core submission

The Commissioner:

  1. examined the effect (no searches)
  2. but not the cause (section 14)

Legal principle

A decision-maker must consider all material factors.

The reason no searches were undertaken is plainly material.

Consequences

Failure to consider this results in:

  1. incomplete reasoning
  2. unreliable conclusion
  3. inability to determine position at date of request

Key proposition

The question “was information held?” cannot be reliably answered where the authority did not ask that question at the time.

Conclusion

The Decision Notice should be set aside or be remitted for reconsideration.