What appears to be a gaming of the ‘not held’ position – an explanation to a request is cited and therefore, it is not established if the information is held. Subsequently, the exemption is withdrawn, but the information is no longer available due to a weeding process in place. No one can now say if, at the date of the request, the information was held, available
The more detailed chronology is as follows:
- A request is made
- Up to 20 working days (4 weeks) pass, and the authority cites an exemption, for example, s.14 – burdensome/vexatious
- ASAP, an Internal Review (IR) is presented to the authority
- Up to 40 working days (8 weeks) pass, and the authority upholds its exemption
- Some 3 months have now passed
- ASAP, the requester places the matter, by way of ‘complaint’, to the ICO
- The ICO is unable to addtress the matter promptly, currently (03/2026), there is up to a 40 week delay for the ICO to assign matters to a case worker
- The ICO considers the matter, possibly writes to the authority
Some 52 weeks, a year since the original request, may have now passed:
- The authority withdraws its reliance on s14 and explains:
- the information is not held – they have a deletion policy, which means the information has been automatically disposed of.
Was the information available at the date of the original request? If so, should it have been retained?
An annotation to the request can be found here and reads:
The above is not a theoretical example, but is evidenced by a 2025 request to Staffordshire police.
The Staffordshire police example
The position is therefore somewhat unusual procedurally. The sequence is:
a. the original request was refused under section 14,
b. the response was subsequently revised to “information not held”, and
c. clarification about that revision has been treated as a new FOI request.
The clarification sought relates to matters such as the searches undertaken, the operation of the email retention policy, and whether the timing of deletion may have intersected with the date of the request.
For transparency, this exchange has been drawn to the attention of the ICO investigator by placing to the WDTK thread here so that the chronology of events is clear while the investigation remains ongoing.
22/03/2026 – request of the ICO
Following Staffordshire Police’s response to FOI 22641, I have asked the Information Commissioner’s Office to continue its investigation into this matter.
The authority has confirmed that no searches were undertaken at the time of the original request due to the application of section 14, and that it is now unable to determine whether the requested information was held at that time.
In light of this, I have asked the ICO to consider the handling of the request, including the application of section 14 and the subsequent “not held” position.
For those interested in the broader procedural issues raised by this case, I have set out a summary here.
To the ICO:
Having now received Staffordshire Police’s response to FOI reference 22641, attached and @ WDTK (link here), I would be grateful if you would continue with your investigation into this matter.
The authority’s latest response clarifies a number of points which, in my view, raise material issues regarding the handling of my original request (FOI 21573).
In particular, Staffordshire Police have now confirmed that:
i. no searches or enquiries were carried out to determine whether the requested information was held,
ii. this was because a section 14 (vexatious) refusal was applied at the time,
iii. as a result, the authority now states it is “not known” whether relevant information ever existed or was deleted,
iv. email deletion occurs automatically on a rolling basis,
v. no audit trail exists for such deletion, and
vi. no steps were taken to preserve potentially relevant information once the request was received.
These points appear to establish that, at the time the original request was made, the authority did not take steps to determine whether information was held, and is now unable to establish whether relevant material may have existed at that time.
My understanding is, under the Freedom of Information Act 2000:
a. Section 1 requires determining whether information is held
b. Section 14 is an exemption, but it does not remove the duty to properly handle the request
It is redundant of me to ask Staffordshire police whether they took reasonable steps to determine what was held as they have stated they did not.
Procedural concern
I would also respectfully raise a broader procedural concern arising from the chronology of events.
The sequence appears to be:
- request submitted (July 2025),
- refusal issued under section 14,
- position maintained through internal review,
- and only revised to “not held” following ICO involvement.
This raises the question of what gave rise to the change in position, and whether the original reliance on section 14 had the effect — intentionally or otherwise — of delaying consideration of whether the information was held.
Given the authority’s confirmation that no searches were undertaken at the time, and that email deletion occurs automatically on a rolling basis without audit trail, there is a potential concern that the use of section 14 may have had the practical effect of allowing time to pass during which potentially relevant information could no longer be established as held.
I do not assert that this was the intention in this case. However, if such a sequence were left unexamined, it could risk creating a procedural pathway by which requests are resisted under section 14, only to be revisited later when the factual position can no longer be determined.
Even if relevant information had already been deleted prior to my request, the process described by Staffordshire Police gives rise to a further concern. Where information remains available at the date of a request, but no enquiries are undertaken due to the application of section 14, and deletion operates automatically on a rolling basis without audit trail or preservation, there is a clear risk that such information may cease to exist before its existence is ever established. In those circumstances, the position of “information not held” may arise not because the information was not held at the time of the request, but because the authority did not take steps to determine whether it was held before routine deletion processes took effect.
Even if everything described by the authority is technically correct, the combined effect of applying section 14 without enquiry, together with automatic deletion processes operating without audit or preservation, appears capable of producing outcomes in which the existence of information at the date of request can no longer be established.
I do not suggest that any deliberate destruction has occurred. However, I would respectfully invite the ICO to consider whether such circumstances risk undermining the protections intended by section 77 of the Act, insofar as information may cease to exist after a request has been made without its status ever having been determined.
Matters for consideration
I would also be grateful if the ICO could consider the authority’s application of section 14 in this case.
The exemption was applied at the initial request stage and maintained at internal review, yet has now been withdrawn and replaced with a “not held” position. The authority has confirmed that, at the time the exemption was applied, no searches or enquiries were undertaken to establish whether the requested information was held.
In light of this, I would be grateful if the ICO could consider:
i. whether the application of section 14 in these circumstances was appropriate; whether it was appropriate to apply section 14 without first establishing, even at a basic level, whether the requested information was held.
ii. Whether the authority has complied with its obligations under section 1(1)(a) of the Freedom of Information Act 2000, given that it now states it does not know whether the information existed; whether the authority took reasonable steps to understand the scope and nature of the request before applying the exemption, and
iii. Whether reasonable steps should have been taken to preserve potentially relevant information once the request was received, particularly in light of automatic deletion processes.
iv. Whether the revised “not held” position can be relied upon where the authority has confirmed that no searches were undertaken at the time of the request.
v. Whether the change in position following ICO involvement warrants examination, in order to ensure that similar procedural approaches do not arise more broadly; what gave rise to the subsequent change in position following ICO involvement.
vi. The delay addressing the matter
This sequence raises a concern as to whether the exemption was applied without a sufficient evidential or procedural basis at the time, and whether that contributed to the present inability to determine whether information was held at the date of the request.
I raise these points respectfully and to assist the ICO in ensuring that the requirements of the Act are applied consistently and transparently.
Finally, given the reference within the underlying material to engagement with national policing bodies, I would be grateful if the ICO could consider whether any external advice or guidance (for example from the NPCC or any associated unit) was sought by the authority at any stage in relation to the handling of this request or the application of section 14.
I raise this only to ensure that the full decision-making context is understood.
I would therefore be grateful if you would proceed with the investigation.
25/03/2026 ICO response – will not consider the potential abuse issue – ‘extremely limited respurces’
Thank you for your email below. For clarity I should confirm that, as per my letter of 12 March 2026, I will only be looking at your concerns linked to Staffordshire Police’s reference 21573, and will not be looking into any concerns about the response to their reference 22641.
Any concerns about Staffordshire Police’s response to request 22641 should be submitted to us as a new complaint via our online portal.
Within your email you have asked that I look into Staffordshire Polices original application of section 14(1) to request reference 21573.
I will not be doing so in this case.
In cases where a public authority withdraws reliance on an exemption during an investigation, the Commissioner does not then go on to investigate whether any exemption have been appropriately applied.
This is because such cases would not be an effective use of our extremely limited resources.
I have received information from Staffordshire Police about its fresh response of ‘not held’ to your request (21573) and will now move to issue a decision notice on this response as soon as possible.
In relation to your concerns about the application of section 14(1) as a way of “delaying consideration of whether the information was held”. This is not something that I will look at as part of this case.
However, I have logged your concerns. This type of information is recorded in order to identify sectors or specific organisations for more focused activity.
Where we feel that there is an opportunity to do so, we will, use this intelligence as a way of working with a public authority to help them improve their information rights practices.
I hope this information is useful and, as above, will continue with the decision notice process.
25/03/2026 to the ICO:
Thank you for your email and for confirming the scope of your investigation.
I understand from your response that, in this case, you will confine your consideration to Staffordshire Police’s fresh “not held” response to request 21573, and will not examine either the force’s response to 22641 or the original application of section 14(1) beyond recording my concerns as intelligence.
I am grateful for that clarification. I should, however, like to place on record why I consider those wider matters to be directly relevant to the credibility and reliability of the present “not held” position in relation to 21573.
The central issue, as I see it, is not simply whether Staffordshire Police now says that information is not held. It is whether that position can properly be relied upon where the force has confirmed that, at the time of the original request, no enquiries or searches were undertaken to determine whether the requested information was held, because section 14 had been applied.
The difficulty is obvious: if no steps were taken to establish whether information was held when the request was made, and if deletion processes continued in the meantime, the later “not held” position may say little or nothing about whether the information was in fact held at the date of the request.
That concern is not abstract. Staffordshire Police has confirmed that email deletion occurs:
a) automatically,
b) on a rolling basis,
c) with no audit trail, and that
d) no preservation steps were taken once the request had been received.
In those circumstances, the present case gives rise to a straightforward but important question:
was information held at the date of my request, and if so, what became of it?
If the answer is now said to be unknown, that is itself part of the problem.
A public authority should not, in my respectful view, be able to rely on a later “not held” position where it did not first establish whether information was held, and where its own processes may have allowed the position at the date of request to become unknowable.
I appreciate that you do not intend, in this case, to revisit the original reliance on section 14. However, I would ask that the decision notice, insofar as possible, squarely addresses the implications of the force’s own admissions, namely:
• that no searches were undertaken when request 21573 was received;
• that the authority therefore did not determine whether information was held at the relevant time;
• that deletion processes were allowed to continue without preservation;
• and that the current “not held” position is therefore reached against a background where the position at the date of request may no longer be capable of being established.
That, respectfully, is why I consider the original application and later withdrawal of section 14 to be so relevant, even if not formally examined as a separate issue.
The concern is not merely that section 14 may have been wrongly applied. It is that the use of section 14 appears, in practice, to have displaced or delayed the fundamental step of establishing whether information was held.
If that sequence can occur without scrutiny, there is an obvious risk that requests may be refused on one basis, allowed to run on through internal review and ICO delay, and only later revisited when retention processes mean that the factual position is weakened, obscured, or lost altogether.
I do not put this as an allegation of deliberate misconduct in this particular case. I do, however, respectfully maintain that it raises a significant procedural concern of wider importance. Even if everything Staffordshire Police has done is said to be technically correct when viewed in isolation, the combined effect of exemption, delay, automatic deletion, and absence of audit or preservation may produce outcomes in which the truth of what was held at the time of request can no longer be tested.
That is not a trivial concern. It goes to the practical operation of section 1 of the Act and the reliability of “not held” responses where no timely enquiries were made.
For completeness, I should also note that 22641 was not a free-standing request in any ordinary sense, but flowed directly from the force’s change of position on 21573. I understand your position that concerns about 22641 would require a separate complaint if I wished to pursue them formally. My reason for referring to 22641 in this case has not been to enlarge the scope of the complaint, but because the force’s answers in 22641 shed light on how 21573 was handled and why the current “not held” position may be problematic.
I am grateful that you have recorded my wider concerns as intelligence. I would ask that those concerns be understood as going beyond dissatisfaction with one exemption decision. They concern a possible process failure capable of recurring elsewhere: namely, the risk that reliance on section 14 at the outset, combined with routine deletion and lack of preservation, may result in a later “not held” response which cannot confidently speak to the position at the date of request.
Subject to that, I am content for you to proceed to decision notice on the present case. I should be grateful if the decision notice would engage as directly as possible with the issue of whether Staffordshire Police took adequate steps to establish whether information was held at the time request 21573 was made, and whether its present “not held” response is sustainable in light of its admitted lack of enquiries at that time.
In short, my concern is that the present case may illustrate a route by which the question “was information held?” is never properly answered: not because the answer is no, but because the authority did not ask the question when it mattered.
You have indicated that, where an exemption is withdrawn during an investigation, the Commissioner does not go on to consider whether it was appropriately applied.
I would be grateful if you could clarify whether this reflects a formal policy or guidance, and whether any such policy is published.
In particular, I would be interested to understand how this approach addresses cases where the application of an exemption may have materially affected the handling of a request — for example, where no enquiries were undertaken to establish whether information was held.
I would be grateful if you could clarify whether there is any mechanism by which concerns regarding the application of section 14 in this case — in particular the absence of any enquiries to establish whether information was held — can be considered further, whether through a separate complaint, internal ICO review process, or otherwise.
I appreciate the ICO’s resource constraints. However, I am concerned that where the application of an exemption directly affects whether the fundamental question of “information held” is ever addressed, this may warrant closer consideration.
You mention that my concerns have been recorded as intelligence. I would be grateful if you could confirm, at a general level, how such intelligence is used, and whether any summary or record of the concerns raised can be shared.
Thank you again for your continued consideration.
a response is awaited