[2025] UKFTT 01265 (GRC)

The Appellant lodged her appeal on 15 January 2025.

The Appellant raised six Grounds of Appeal as follows:

In conclusion, the appeal notice stated:

“I respectfully suggest that the ICO has erred in their application of the “Balance of Probability” test in failing to give due consideration to the way in which the LAA/MOJ have handled this request from the outset and the many different descriptions they provided re the state of their archiving procedures. In addition no consideration has been given to the likelihood of no amendments to the contract having been carried out during the time it was held by Alexander Harris in light of the many changes evidenced by earlier FOIA’s in respect of other groups of solicitors who previously held the contract.

The conduct of the LAA/MOJ in initially describing an archiving system which was less than proficient and then switching to accounts of a state of the art retrieval processes following the intervention of the IOC doesn't instil confidence which when coupled with the failure of both the LAA/MOJ and the ICO to correctly interpret the contents of Amendment 2 suggests that the Balance of Probability ‘percentage’ could be significantly less than that determined by the ICO in this case”.

The GRC1 Notice of Appeal was submitted at a later date, namely on 03 March 2025, owing to the original notice of appeal not being located on the Tribunal’s electronic system.

The remedies sought in the GRC1 were (i) a further search of the MOJ archives; (ii) an explanation to be provided in the event that no relevant material was identified; and (iii) disclosure of amendments/alterations to the Contract to Do Work authorised by the LAA to Alexander Harris Solicitors.

The Commissioner lodged his response on 19 May 2025, in which he maintained that the Decision Notice was correct.

The Commissioner confirmed that the relevant test was whether a public authority holds information, on the balance of probabilities – in other words, whether information is, on the evidence, more likely to be held than not.

The Commissioner’s response, in essence, was:

The Commissioner’s conclusion in his response was that he remained satisfied that he was right to decide on the balance of probabilities, that the MoJ did not hold any more information within the scope of the Appellant’s request.

The MoJ lodged their response on 21 May 2025.

The MoJ’s response, in essence, was:

The MoJ concluded that they had carried out multiple searches and provided the resulting disclosure, such that the Appellant’s request had already been responded to in full. The MoJ was satisfied that they had performed reasonable searches to conclude that, on the balance of probabilities, further information in-scope of the Appellant’s request was not held.

The Appellant filed a reply on 30 May 2025. She stated that:

“I respectfully submit that the catalogue of errors, the state of the archived filing system at the LAA/MOJ and the pattern of continuously updating and issuing new amendments to contracts with previous holders of the MMR litigation contract cast doubt over whether or not the balance of probability test carried out by the ICO to determine that the LAA/MOJ did not hold any material relevant to my FOIA request (with the exception of the one page disclosed) can be reliably met in these circumstances”.

The Appellant highlighted a series of errors and inconsistencies, namely:

The Appellant also asserted that there was information in the public domain which evidenced events (such as treatment being provided in the USA) that had taken place during the time when the contract was held by Alexander Harris Solicitors and which would have required an authority and funding. There was a clear pattern of work authorised with an allocated budget for each item in previous contracts, and so she queried why there were no similar amendments for the time when the contract was held by Alexander Harris Solicitors.

The Appellant lodged an addendum to her response on 30 July 2025, in which she provided further detail of multiple events that took place during the time that Alexander Harris Solicitors held the contract and which would have required the authority of the MoJ and an allocation of funding. Those events made it more likely than not that amendments had been created to the contract. She again submitted that, on the balance of probabilities, it could not be asserted that the MoJ did not hold any further material in respect of her request.

The Appellant submitted a skeleton argument on 02 October 2025, which she supplemented in oral submissions during the hearing.

In essence, the submissions relevant to the subject of the appeal were:

Counsel for the MoJ submitted a skeleton argument on 09 October 2025, which he supplemented in oral submissions during the hearing.

In essence, the submissions relevant to the subject of the appeal were:

The relevant provisions of FOIA are as follows:

Sections 45 and 46 of FOIA direct the Secretary of State to issue Codes of Practice providing guidance to public authorities as to desirable practices in connection with the discharge of their functions under Part 1 of FOIA, and in connection with the keeping, management and destruction of their records.

Paragraph 1.12 of the Code of Practice issued pursuant to section 45 of FOIA states that:

“Public authorities need to search for requested information in order to communicate to the applicant whether the information they are seeking is held or not held by that public authority. These searches should be conducted in a reasonable and intelligent way based on an understanding of how the public authority manages its records. Public authorities should concentrate their efforts on areas most likely to hold the requested information. If a reasonable search in the areas most likely to hold the requested information does not reveal the information sought, the public authority may consider that on the balance of probabilities the information is not held”.

Paragraph 2.3.9 of the Code of Practice on the management of records issued under section 46 of FOIA states that:

“Authorities should have appropriate tools to identify, locate and retrieve information when required. An effective search capability should be maintained alongside controls to protect sensitive information”.

Whether a public authority holds material is a question of fact to be determined on the balance of probabilities (Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072; 31 August 2007, as approved in Andrew Preston v the Information Commissioner and the Chief Constable of West Yorkshire Police [2022] UKUT 344 (AAC)). The First-tier Tribunal held that in determining a dispute as to whether information is ‘held’ that:

“There can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority's records. This is particularly the case with a large national organisation like the Environment Agency, whose records are inevitably spread across a number of departments in different locations.  The Environment Agency properly conceded that it could not be certain that it holds no more information. However, it argued (and was supported in the argument by the Information Commissioner) that the test to be applied was not certainty but the balance of probabilities. This is the normal standard of proof and clearly applies to Appeals before this Tribunal in which the Information Commissioner's findings of fact are reviewed. We think that its application requires us to consider a number of factors including the quality of the public authority's initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including, for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed”.

The Upper Tribunal in Andrew Preston v the Information Commissioner and the Chief Constable of West Yorkshire Police also noted that, importantly, in Councillor Jeremy Clyne v the Information Commissioner and London Borough of Lambeth (EA/2011/0190) the Tribunal held that the “issue for the Tribunal is not what should have been recorded and retained but what was recorded and retained”. The Tribunal was satisfied that a gap in the public authority’s documentary records reflected “inconsistent and poor administrative practice” but this did not amount to a breach of FOIA.

In Garrard v IC and the Home Office (EA/2009/0107), the First-tier Tribunal noted that:

“Where the critical issue is whether information is held, it is incumbent on the IC to analyse very carefully the searches the public authority report that they have undertaken…..It is only where no such issues arise that the IC should rely upon the assertion of the public authority that the search taken was adequate”.

A public authority must therefore carry out a reasonable search, but is not required to carry out an exhaustive search in unlikely places.

The Tribunal’s remit is governed by section 58 of FOIA. This requires the Tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved an exercise of his discretion, whether he ought to have exercised it differently. The Tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

The issue for the Tribunal to determine is whether the Commissioner was correct in holding, on the balance of probabilities, that the MoJ did not hold any relevant information within the scope of the request, save for that which was disclosed, at the time that the request was made.

We read and took account of the following documents:

We also heard oral submissions by the Appellant and on behalf of the MoJ which we have taken into account.

As outlined above, the sole substantive issue for the Tribunal to determine is whether the Commissioner was correct in finding that it was more likely than not that the MoJ did not hold any further relevant information within the scope of the request at the time that the request was made.

In assessing this question, we have had regard to paragraph 1.12 of the Code of Practice issued pursuant to section 45 of FOIA which, whilst not binding, is instructive of the approach that a public authority may follow when conducting a search, namely:

The Appellant did not seek to dissuade us from considering the approach outlined in paragraph 1.12 of that Code of Practice. In addition, whilst the Appellant did question the effectiveness of the searches given the varying accounts that she understood that she had been given about the storage of the documents, she did not dispute the information that was provided by the MoJ about the factual nature of the searches that had been conducted.

The Tribunal is therefore satisfied that the following steps were taken by the MoJ in relation to the Appellant’s request:

On the basis of the information provided by the MoJ, the Tribunal is satisfied that the searches were conducted in a reasonable and intelligent way, and that they concentrated on the areas which were deemed most likely to hold the requested information.

It is not submitted by the Appellant that the MoJ would have any motive to withhold the information or that there was any reluctance to conduct a proper search, such that the Commissioner would not have been entitled to accept the responses of the MoJ at face value as to the searches that were conducted. We also note that the Appellant's request was very precisely worded, relating to amendments to a specific contract, and so we are satisfied that there would have been no ambiguity in the interpretation of what was being requested and that experienced staff would easily have been able to identify relevant documents. We have had regard to the Appellant’s submissions that the accounts that have been provided to her regarding the archiving of the files are inconsistent with one another. However, having carefully considered the wording of the responses that were sent by the MoJ to the Appellant, we are satisfied that the Commissioner’s assessment in this regard is correct – namely that the archived files are assigned unique reference numbers and can be located, but that the content of the files themselves are not indexed or in any particular order.

We also note that the Appellant has, understandably, questioned the use of the assertion by the MoJ on 18 November 2024 that they were unable to locate any further documents (other than the one-page document) which “on its face appeared to be an amendment made to the Authority to Do Contract Work” and pointed to this as evidence that the searches conducted were not rigorous. We agree with the submissions on behalf of the MoJ that the wording is “clumsy”, but equally we accept that the letter was referring to a second search and that the wording does not undermine the searches that took place.

The Appellant asserts that, based on the information that has been provided to her in response to her previous requests relating to earlier contracts, there should have been amendments to the contract with Alexander Harris Solicitors. She has also referred to a number of events during the course of the contract with Alexander Harris Solicitors including, for example, treatment received in the USA, which she states would have necessitated the issuing of funding and amendments to the contract. As the MoJ have indicated that no relevant material has been destroyed, the Appellant therefore denies that her expectations as to what material should exist are speculative and instead states that “given the precedent set by earlier FOIA releases of contractual arrangements between the LAA/MOJ and the other solicitors it is a reasonable expectation that similar existed in respect of Alexander Harris”.

Whilst we understand the rationale behind the Appellant’s submissions, we have reminded ourselves that our focus must be on whether the MoJ did hold any additional material, not whether they may or should have held any additional material.

The Tribunal’s ambit is limited to a consideration of the Decision Notice, and specifically whether the Commissioner was correct in holding, on the balance of probabilities, that the MoJ did not hold any relevant information within the scope of the request, save for that which was disclosed, at the time that the request was made. The MoJ did not pursue their initial reliance on section 12 of FOIA and it was therefore – properly – not considered by the Commissioner. The Appellant has also asserted that the MoJ failed in its duty to provide advice and assistance in accordance with section 16 of FOIA but again, following the withdrawal of reliance on section 12 of FOIA, any ground of appeal linked to the application of section 16 of FOIA also becomes academic, and we have therefore not considered it.

We note that there are a number of factual errors in the documents provided by both the MoJ and the Commissioner including, for example, the description of the one-page document, an incorrect citation of section 12(2) of FOIA, and the reference by the MoJ in their letter of 10 June 2024 that they held “all” of the information that you have requested. As conceded by the MoJ in submissions, these errors are regrettable and should not occur. However, we accept the contention by the MoJ that the errors are not material to the substantive issues in this appeal. They do not undermine the fact that two searches were carried out, and they do not undermine how the searches were carried out.

The Appellant challenged the statement made by the MoJ that she was given “a better result” than she could have obtained from the Commissioner through the MoJ agreeing to treat the complaint as a new application. We do not find this to be a helpful statement by the MoJ. The Appellant – again understandably – believed that this statement meant that she received more information by the MoJ treating her complaint as a new request than she would have otherwise done if the MoJ had continued to rely on section 12 of FOIA which, given that she had previously already received the one-page document, was incorrect. We have understood this statement to mean that, by volunteering to treat the complaint as a new request, the MoJ conducted more searches for the relevant material than they otherwise would have done. Whilst the MoJ’s statement is not material for the purposes of this appeal, we do find that it would have benefited from clarification/rephrasing by the MoJ to ensure that its meaning was clear to all parties.

We therefore determine that the Commissioner was correct in finding, on the balance of probabilities, that the MoJ did not hold any further relevant information within the scope of the request at the time that the request was made.

The Tribunal dismisses the appeal for the reasons given above.