Malachy Rodgers v The Information Commissioner & Anor

On 8 April 2017, a young man, Christopher Rogers, died at the Orchard Leisure Centre, County Armagh.

Thereafter, his father, Malachy Rogers, the Appellant in this appeal, has sought answers to multiple questions he has, not only about the circumstances of his son's death, but also the subsequent investigations undertaken by the Second Respondent (“HSENI”), and other public authorities and agencies.

This appeal concerns a request for information made by the Appellant of HSENI pursuant to the Freedom of Information Act 2000 (“FOIA”).

Before we turn to the appeal, we set out below a description of HSENI provided in evidence in this appeal by its Deputy Chief Executive, Louis Burns:

“... HSENI, is the regional health and safety authority for Northern Ireland and was established on 1 April 1999 as an executive Non-Departmental Public Body (NDPB) with Crown status. This was brought about by an Order in Council amending the Health and Safety at Work (Northern Ireland) Order 1978. An executive NDPB has a role in Central Government but is not a government department or part of one. HSENI is funded by the Department for the Economy (DfE). HSENI is presently staffed by Civil Servants and currently has 107 staff members.

... HSENI has primary responsibility under the Health and Safety at Work (Northern Ireland) Order 1978 for the regulation of health and safety at work in Northern Ireland. This involves the proposing and setting of necessary standards and securing compliance with those standards and undertaking other forms of activity designed to stimulate or support necessary action on the part of people and organisations that create health and safety risks. HSENI Inspectorate staff deal with various matters including: Complaint notifications; Accident/Dangerous Occurrence Notifications which are reportable under RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations); health and safety at work investigations, Prosecutions, Prohibition Notices, Improvement Notices, Asbestos License applications, Ionising Radiation License applications, Notifications of Construction Projects and Notifications of Asbestos work (licensed and non-licensed), etc. When dealing with these various matters HSENI collects, generates and stores information.”

Both HSENI and the Police Service of Northern Ireland (“PSNI”) investigated the circumstances of Christopher Rogers’ death.

The focus of this appeal is a single part of a request for information which the Appellant made of HSENI on 13 October 2023 (“the Request”).

The totality of the Request was worded as follows. We have redacted the names of certain HSENI officers in this judgment, replacing their names with letters.

“I am the father of Christopher Rogers deceased as of the 08/04/17. I would like to request the following information from the hseni in relation to my son Christopher's death.

1.

1. on what dates did your senior investigator HSENI Officer A visit the orchard leisure centre in Armagh for the purpose of the hseni investigation into the death of Christopher Rogers?

2.

2. Who did HSENI Officer A meet with when he visited the orchard leisure centre Armagh (I don't want the names of those people just the positions held by them).

3.

3. Can you please confirm what date I, Malachy Rogers contacted the hseni to speak with the investigator in charge of Christopher's case (HSENI Officer A).

4.

4. On what date did HSENI Officer A return the call that I had made to your office, requesting to speak with him.

5.

5. On what date did your officer (HSENI Officer A) contact the office of the PPS in relation to the death of Christopher Rogers.

6.

6. On what date was your office contacted by the PSNI to start a joint investigation into the death of Christopher Rogers.

7.

7. On what date was HSENI Officer A replaced by HSENI Officer B in the investigation into the death of Christopher Rogers.

8.

8. Did the senior investigator HSENI Officer A/HSENI Officer B ask HSENI Officer C to pick up the CCTV footage of the killing of Christopher Rogers from the ABC COUNCIL. Did HSENI Officer C declare a conflict of interest when asked to pick up the CCTV footage as [they are] related through marriage to one of the people who was present the night Christopher was killed, and who ultimately was questioned under caution by the psni and the hseni.

9.

9. Can you please confirm the date that the Rogers family solicitor (John Mc Grane) contacted your office”

On 2 November 2023, HSENI refused to disclose the information requested in reliance on s31(1)(g) and s31(2)(a), (c), (i) and (j) of the Freedom of Information Act 2000 (“FOIA”) (law enforcement).

On 6 November 2023, the Appellant sought an internal review. On 4 December 2023, HSENI maintained its position.

On 8 December 2023, the Appellant complained to the Information Commissioner (“the Commissioner”). On 3 January 2024, the Commissioner acknowledged receipt of the complaint on 3 January 2024. On 13 March 2024, the Commissioner’s case officer confirmed to the Appellant that they were investigating the complaint. On 20 March 2024, the Commissioner contacted HSENI to seek information, and an explanation of HSENI’s reliance on s31 FOIA (law enforcement) to refuse the Request.

On 8 April 2024, HSENI issued a revised response to the Request, disclosing information in response to parts 1, 2, 5, 6, 7 and 9 of the Request, stating that it already answered parts 3 and 4 as part of a separate subject access request made by the Appellant, and stating that it did not hold information relating to part 8 of the Request.

In relation to part 8 of the Request, HSENI said this: “A search of HSENI’s electronic and paper records has been carried out based on the scope of your question, I can confirm that HSENI does not hold the requested information.”

The Appellant informed the Commissioner that he was dissatisfied with (at least) HSENI’s response to part 8 of the Request and questioned the absence of a requisition form for collection of the CCTV footage, in which he believed HSENI Officer C should have declared their conflict of interest. On 13 June 2024, the Commissioner asked HSENI whether HSENI would have required the production of a requisition form or other documentation to obtain the CCTV footage. On 17 June 2024, HSENI confirmed that it did not hold such a document; HSENI does not normally use requisition forms, and most duty-holders recognise and respect HSENI’s powers, providing information voluntarily.

On 18 June 2024, the Commissioner relayed HSENI’s response on this point to the Appellant. The Appellant was dissatisfied with matters, emphasising that he had not asked if HSENI held a requisition form and was seeking to understand whether HSENI Officer C had declared a conflict of interest, and, if not, why not. He raised a further question as to inconsistencies in accounts given to him by HSENI as to whether, and, if so when, the CCTV footage may have been destroyed. On 28 June 2024, the Commissioner explained that he could not require HSENI to provide answers beyond those to the Appellant’s requests for recorded information. The Commissioner offered to investigate separately the Appellant’s questions about possible destruction of the CCTV footage.

By a Decision Notice dated 2 August 2024, focused only on part 8 of the Request, the Commissioner decided that HSENI does not hold recorded information relating to part 8 of the Request. He decided that:

“18.

On the balance of probabilities the Commissioner finds that HSENI does not hold recorded information which is relevant to part 8 of the request. The Commissioner has also considered whether, if he were to uphold the complaint, he could specify any steps that HSENI could be required to take. In this case the Commissioner accepts that HSENI has provided a clear explanation of its position and he is of the view that there is nothing more he can require HSENI to do that would satisfy part 8 of the complainant’s request.”

By a Notice of Appeal dated 24 September 2024, the Appellant made a number of points, which we summarise below:

The Appellant submits that his appeal should be allowed, and that the Tribunal should order HSENI to conduct a formal and documented search to disclose the information requested.

By its Response to the appeal dated 24 September 2024, HSENI submits, in summary, that:

By his Response to the appeal dated 25 September 2024, the Commissioner submits, in summary, that:

On 3 February 2025, a little over two weeks before the hearing of this appeal, HSENI wrote to the Appellant to identify two factual errors in the Decision Notice, and to volunteer information in relation to part 8 of the Request.

The errors identified by HSENI and which the Commissioner has not disputed, are as follows:

HSENI addressed the error in paragraph 16 of the Decision Notice by confirming that “The first thing that HSENI did in response to your FOIA request was conduct a formal search for electronic and documentary records falling within the scope of your FOI. Thereafter HSENI consulted with relevant staff to ensure that nothing relevant was missed.”

HSENI addressed the error in paragraph 14 of the Decision Notice by confirming that HSENI had not advised the Appellant or the Commissioner “that it is not required to create or record information in relation to conflicts of interest. For the avoidance of doubt HSENI is required to record conflicts of interests. However, HSENI is not required to obtain a requisition form in relation to the collection of CCTV evidence; it was your request for such a form that prompted HSENI to confirm that it is not required to create or record this particular information in order to carry out its statutory functions.”

In relation to part 8 of the Request, HSENI said this:

“Your question 8 asks two closed questions. Please be advised that we make no criticism of the manner in which you have framed these questions, but we consider that confirming or denying the existence of information in accordance with Section 1(1)(a) was unlikely to satisfy your request notwithstanding that in doing so HSENI fulfilled its statutory duty.

We hope that providing you with straight answers to your questions that this might go some way towards satisfying your request. In relation to the first part of your request: “Did the senior investigator HSENI Officer A/HSENI Officer B ask HSENI Officer C to pick up the CCTV footage of the killing of Christopher Rogers from the ABC Council.” The answer is “No”. Neither HSENI Officer A nor HSENI Officer B asked HSENI Officer C to pick up the CCTV footage. It was another Health and Safety Inspector employed by HSENI who asked HSENI Officer C to collect the CCTV. Please also note the request to HSENI Officer C was made orally and the details of the conversation were not contemporaneously recorded at the time.

In relation to the second part of your request: “Did HSENI Officer C declare a conflict of interest when asked to pick up the CCTV footage as [they are] related through marriage to one of the people who was A39 present the night Christopher was killed, and who ultimately was questioned under caution by the PSNI and the hseni.” The answer is “No”. HSENI Officer C did not declare a conflict of interest.”

HSENI went on to say this:

“... We note that you make various points in your appeal form that were not under the consideration of the ICO. The scope of the ICO decision was in respect of your FOR question 8 request which is set out above.

If you wish to request any information that did not form part of your original FOI dated 13 October 2023 then please issue a fresh FOI to HSENI which will be dealt with in accordance with the FOIA.”

The Tribunal read the OPEN bundle, and received oral submissions from the Appellant, responsive oral submissions from Counsel for HSENI, and closing oral submissions from the Appellant. The Tribunal bore in mind the contents of the Commissioner’s Decision Notice and his Response to the appeal.

By his oral submissions, building on the points in his Notice of Appeal, the Appellant explained to us facts and matters he has identified which he says indicate inconsistent accounts from various sources over time, including HSENI, relating to HSENI’s employees’ collection, investigation and use of the CCTV footage. He is also concerned that HSENI have been evasive in their responses to him generally.

We do not seek to rehearse the Appellant’s submissions in this judgment, and confine ourselves to this summary: HSENI says that it held no responsive, recorded information at the time of the Request but that raises a question as to when such information was recorded and why at that time; in December 2024, the Police Ombudsman for Northern Ireland confirmed to the Appellant that the police hold a statement from HSENI Officer B, confirming that it was he who asked HSENI Officer C to collect the CCTV footage, yet HSENI has, inexplicably, failed to confirm that this was the case; there remain important questions as to the circumstances in which employees of HSENI and others may have retained and viewed the CCTV footage, and made it available for viewing by others, including the public; the Deputy Chief Executive of HSENI, Louis Burns, had consulted with the Public Prosecution Service for Northern Ireland as to how HSENI should respond to the Request, and been advised by that Service to keep HSENI’s responses as brief as possible.

The Tribunal sought to understand from Counsel for HSENI whether HSENI’s instruction for searches to be undertaken for material responsive to part 8 of the Request was an oral instruction, Counsel’s submission, rightly couched in an observation that Counsel could not give evidence, was that it was an oral instruction, and that the searches included electronic and paper searches, and enquiries of staff.

Included in the hearing bundle was an email from the Appellant to the Tribunal dated 23 January 2025, copied to the Commissioner but not to HSENI, in which the Appellant said that in early December 2024, he had been informed by a representative of the Police Ombudsman for Northern Ireland that the Police Ombudsman hold “a police statement from HSENI Officer B stating that it was he who asked HSENI Officer C to pick up this CCTV footage.” Counsel for HSENI told us that the first time HSENI was aware of this was when HSENI had received the hearing bundle, which Counsel thought was on 3 February 2025, that is to say, two weeks before the hearing. Counsel had no instructions relating to the issue of HSENI Officer B asking for collection of the CCTV footage.

Given the conflict between the Decision Notice and HSENI’s letter to the Appellant of 3 February 2025 as to the searches undertaken by HSENI in response to the Request, after the hearing the Tribunal directed HSENI to file all correspondence between HSENI and the Commissioner which did not already appear in the hearing bundle, which addressed, directly or indirectly, HSENI’s searches for any information responsive to the Request, and, if no such correspondence existed, to confirm that that was the case.

In compliance with that direction, on 7 April 2025, HSENI confirmed that: it held no further information in relation to correspondence between HSENI and the Commissioner relating to HSENI’s searches conducted aside from the material that was included in the bundle; HSENI had confirmed by telephone to the Commissioner the parts of its information holdings which it had searched but could not find any relevant information; HSENI had contacted the relevant investigating officers who had explained that there was no requisition form for arrangements to collect the CCTV footage; HSENI do not hold any other correspondence, phone logs or communications where the Commissioner asked HSENI for information relating to searches or in which HSENI provided information related to searches.

On 8 April 2025, the Appellant sent to the Tribunal, copied to the Commissioner but not to HSENI, a letter sent to him on 26 March 2025 by HSENI in response to a recent, fresh FOIA request made by the Appellant on 27 February 2025 of HSENI, in which he sought further information about HSENI’s investigation, including HSENI’s arrangements to collect the CCTV footage.

In response to that request, HSENI had provided to the Appellant extracts from three witness statements held on its systems., made by HSENI Officers B, C and D. HSENI did not identify to the Appellant the dates of those statements or their purpose.

We summarise the extracts of those witness statements as follows:

On 14 April 2025, the Tribunal directed the Commissioner to file with the Tribunal any record of a telephone call or other email or written correspondence between the Commissioner and HSENI which was not already in the bundle, in which HSENI addressed its searches for information responsive to the Request.

On 23 April 2025, the Commissioner confirmed to the Tribunal that he had no further evidence to provide in that regard. We take that to mean that the Commissioner has no record of a telephone call or other correspondence between the Commissioner and HSENI addressing the searches undertaken by HSENI. Taking that together with HSENI’s confirmation that it did not retain a record of such a call, it seemed that there was no record of the account given by HSENI to the Commissioner of the searches it undertook to locate information responsive to the Request.

Accordingly, on 14 April 2025, the Tribunal directed HSENI to file a witness statement providing: a full account of its searches; a record of any telephone call between HSENI and the Commissioner describing its searches, or, if no such record existed, confirmation of the date of, and parties to, the call and an explanation of the basis on which the Departmental Solicitor’s Office representing HSENI had been instructed as to the existence and content of the call, absent any record of it existing; and copies of the witness statements of HSENI Officers B, C and D (with exhibits) referred to in HSENI’s letter to the Appellant of 26 April 2025, from which it had quoted extracts to him.

On 6 May 2025, HSENI filed the material directed.

HSENI’s evidence is in the form of a witness statement dated 6 May 2025 from Louis Burns, Deputy Chief Executive of HSENI. Mr Burns is responsible for the Services Division of HSENI which encompasses Financial Management Unit, Communications/Media Team, Operational Support Unit, the Complaints and Notifications Team, Legislation, Corporate Support and Information Management Unit.

In summary: Mr Burns explains that by the time HSENI had received the Request on 13 October 2023, a preliminary enquiry had been held in Newry Magistrates’ Court in March 2023 where the Court had been satisfied that there was a prima facie case to answer, and the case had been adjourned to be heard before Newry Crown Court, awaiting a trial date. Mr Burns does not say what this enquiry or case related to, but we understand it to relate to the prosecution of persons in relation to Christopher Rogers’ death.

Mr Burns’ evidence is that upon receipt of part 8 of the Request, HSENI searched for any record of HSENI Officer A or HSENI Officer B asking HSENI Officer C to collect the CCTV footage, over its electronic records management system, which is called Contents Manager, and also a scanned file relating to the potential prosecution, which is also held on Contents Manager. Mr Burns says that searches of scanned prosecution files cannot be undertaken by reference to specific search terms so the search of the scanned prosecution file in this case was undertaken manually. The HSENI officer undertaking that search was looking primarily for any recorded information responsive to questions 5 and 8 of the Request.

Mr Burns explains that on 25 October 2023, the HSENI officer undertaking the search was instructed by an Inspector in HSENI’s Major Investigations Team that none of the information requested by the Appellant should be disclosed pending the proposed prosecution. The officer therefore stopped searching for information responsive to the Request, and the totality of the information requested by the Appellant was refused pursuant to s31 FOIA (law enforcement) on 2 November 2023.

Mr Burns explains that in March 2024, during the Commissioner’s investigations, the same HSENI officer telephoned HSENI Officer D for the first time to ask if they had asked HSENI Officer C to collect the CCTV footage. HSENI Officer D confirmed that they had. The officer then checked the witness statements of HSENI Officer A andHSENI Officer B and the HSENI investigation report for any mention of HSENI Officer C being asked to collect the CCTV footage but there was none.

Mr Burns explains that on 28 March 2024, the Public Prosecution Service for Northern Ireland confirmed to HSENI that it did not consider that the previously withheld information could potentially impinge on areas which could feature in the criminal proceedings. Accordingly, HSENI revised its response to the Request, resulting in HSENI’s letter to the Appellant of 8 April 2024, which said, in relation to part 8 of the Request: “A search of HSENI’s electronic and paper records has been carried out based on the scope of your question, I can confirm that HSENI does not hold the requested information.”

Mr Burns explains that on 14 January 2025, in preparation for the hearing of this appeal, the HSENI officer who undertook the searches we have described above, for the first time searched the scanned prosecution file for any HSENI witness statements by HSENI Officer C and HSENI Officer D. The officer found HSENI Officer C’s statement stated 14 December 2017 and HSENI Officer D’s statements dated 14 December 2017 and 25 June 2018, which the officer brought to Mr Burns’ attention. Mr Burns says that he and the officer formed the view that the information in those statements was not within scope of part 8 of the Request because that had specifically asked whether HSENI Officer A or HSENI Officer B had asked HSENI Officer C to collect the CCTV footage. Moreover, they formed the view that even if the statements were in scope of the Request, the criminal trial was ongoing at the time and the witness statements were exempt from disclosure pursuant to s30 FOIA, so would not have been provided to the Appellant in any event.

Mr Burns confirms that the criminal trial formally concluded on 28 January 2025.

Apparently mindful, however, not only of the Appellant’s dissatisfaction with HSENI’s response to the Request, but also of HSENI’s duties pursuant to s16 FOIA, and the Commissioner's guidance in relation to those duties, Mr Burns explains that he authorised HSENI to write to the Appellant in the terms of HSENI’s 3 February 2025 letter. Mr Burns says that the purpose of the letter was to assist the Appellant by addressing the closed nature of the Request, and by going beyond HSENI’s duty to confirm or deny whether it held responsive information, by directly answering “No” to the Appellant’s question as to whether HSENI Officer A or HSENI Officer B had asked HSENI Officer C to collect the CCTV footage, and going even further and explaining why the answer was “No”: because it was another HSENI employee who asked HSENI Officer C to collect the CCTV footage. Additionally, the 3 February 2025 letter referred to the errors in the Decision Notice and invited the Appellant to issue a fresh FOIA request for any additional information.

Mr Burns explains that on 3 February 2025, HSENI received the hearing bundle for this appeal and saw the Appellant’s reference to the Police Ombudsman confirming to the Appellant in December 2024 that the Police Ombudsman held a police statement from HSENI Officer B stating that it was HSENI Officer B who asked HSENI Officer C to collect the CCTV footage. Mr Burns says that HSENI checked the witness statements in the scanned prosecution file and elsewhere on Contents Manager but could not find a PSNI statement for HSENI Officer B. HSENI contacted HSENI Officer B to ask them about such a statement. HSENI Officer B said they could not recall ever making a PSNI statement or telling PSNI that they had asked HSENI Officer C to collect the CCTV, and that it was HSENI Officer D who had done so.

Mr Burns explains that on 27 February 2025, the Appellant issued a fresh FOIA request to HSENI, this time asking the open question, “who” instructed HSENI Officer C to collect the CCTV footage. HSENI identified that that question could be answered from the information in the HSENI witness statements of HSENI Officers B, C and D. Mr Burns explains that these are not PSNI witness statements, but HSENI witness statements. These enquiries resulted in HSENI’s response of 26 March 2025 to the Appellant’s FOIA request of 27 February 2025.

Mr Burns takes the opportunity by his evidence to the Tribunal to explain that he has reflected on HSENI’s position in relation to this appeal. With the benefit of hindsight, he believes that HSENI could have handled the Request differently either by broadening the scope of part 8 of the Request to include any recorded information of who asked HSENI Officer C to collect the CCTV footage or by reverting to the Appellant to ask him to reformulate his question, which would then have brought the information in HSENI Officer C’s statement in scope, and possibly that of HSENI Officer D’s witness statement, of part 8 of the Request. Mr Burns regrets that HSENI did not take that position at the time of the original Request or during the Commissioner’s investigation or prior to the hearing on 20 February 2025.

Mr Burns explains, nevertheless, that had HSENI taken that alternative approach when the Request was made, HSENI would still not have released the information contained in HSENI Officer C’s or HSENI Officer D’s witness statements as they were part of the file sent to the Public Prosecution Service for Northern Ireland, and the criminal case was progressing through the court system at that time. HSENI would have confirmed that it held responsive information but that it was exempt from disclosure pursuant to s30 FOIA (investigations and proceedings conducted by public authorities).

Mr Burns further explains that when dealing with the Appellant’s fresh FOIA request of 27 February 2025, HSENI made an exception to its general rule to rely on s30 FOIA not to disclose such witness statements even after a criminal trial has concluded, which rests, in summary, on a concern not to deter people from giving voluntary witness statements and co-operating in investigations. Mr Burns says that HSENI made the exception to demonstrate to the Appellant that HSENI was not trying to hide the requested information but was, throughout, seeking to balance competing obligations, and to recognise that, in hindsight, HSENI should have taken the alternative approach identified by Mr Burns, although this would not have resulted in any additional information being disclosed to the Appellant prior to the conclusion of the criminal trial.

At the same time as filing Mr Burns’ witness statement, HSENI filed a CLOSED bundle with the Tribunal, accompanied by an application by email, copied to the Appellant and the Commissioner, for a direction that its contents be held pursuant to Rule 14 (6) of the Tribunal Rules.

The contents are: one witness statement made by HSENI Officer A, five witness statements made by HSENI Officer B, one witness statement made by HSENI Officer C, and two witness statements made by HSENI Officer D. We have not been provided with the exhibits to those statements, which HSENI say are very substantial, and some of which are not in document format, although HSENI has offered to provide them.

Having reviewed the CLOSED bundle, the Tribunal grants, by separate direction, HSENI’s application that its contents be held pursuant to Rule 14 (6), save those parts which have already been provided as extracts to the Appellant by HSENI on 26 March 2025. The Tribunal has satisfied itself that those extracts derive from witness statements made by HSENI Officers B, C and D, that they are not PSNI witness statements but HSENI statements, and that there are no PSNI witness statements in the CLOSED bundle. Beyond the extracts provided, the contents of those statements are not relevant to the issues we must decide in this appeal. HSENI has included the additional HSENI witness statements made by HSENI Officers A, B and D in the spirit of openness and transparency. Those also are not relevant to the issues we must decide in this appeal.

The relevant provisions of FOIA are as follows:

The import of s58 FOIA is that the right of appeal to the First-tier Tribunal involves a full merits consideration of whether, on the facts and the law, the public authority’s response to the Request is in accordance with Part 1 of FOIA (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29, at paragraphs [45]-[46] and [90]. The Tribunal has jurisdiction to decide, de novo on the merits, whether the Commissioner’s decision is in accordance with the law.

We start by acknowledging the courteous, clear and forensic way in which the Appellant presented his appeal.

We acknowledge that the Appellant has multiple questions about the circumstances of his son's death, the conduct of HSENI and individual HSENI officers in their investigation of those circumstances, and the associated conduct of other public authorities and persons. These are not, however, matters within the Tribunal’s jurisdiction to investigate or determine in this appeal and we make no finding of fact in relation to the events described by the Appellant in his Notice of Appeal or submissions.

The focus of this appeal is, necessarily, HSENI’s response to part 8 of the Request.

By its initial refusal of the totality of the Request on 2 November 2023, HSENI said that “HSENI holds information relevant to your request” but that “this investigation is ongoing. This case is currently with the PPSNI, resulting in a case now progressing through the Criminal Court system. Unfortunately, HSENI does not have a timescale for when this will be finished.” On that basis, HSENI refused the Request pursuant to s31 FOIA (law enforcement).

Five months later, on 8 April 2024, HSENI refused part 8 of the Request, saying that HSENI did not hold the requested information.

This is an appeal against the Decision Notice. We must determine whether the Decision Notice is correct in law. The Decision Notice addresses only HSENI’s ultimate response to part 8 of the Request, dated 8 April 2024, which was to confirm that HSENI did not hold the requested information. The Tribunal’s jurisdiction is therefore limited to determining whether, on the balance of probabilities, at the time HSENI refused part 8 of the Request, it held recorded information responsive to the precise scope of Part 8 of the Request.

FOIA provides that a person making a request for information is entitled to be informed in writing by the public authority whether the authority holds information of the description specified in the request and, if that is the case, to have that information communicated to him, unless the information is otherwise exempt from disclosure under FOIA.

Such information must be recorded information, so that if the public authority does not hold the information in recorded form, as opposed to the information being held, for example, as knowledge in the head of its employees, the public authority is not required to communicate that information to the requesting party, and may refuse the request pursuant to s1(1)(a) FOIA.

If a request, such as the Request in this case, is worded in very precise and, indeed, limiting terms (and we make no criticism of the Appellant in this regard who was, fairly, intending a very precise question), then the public authority must identify whether or not it holds in recorded form precisely the information asked for. So, when asked “Did X ask Y to collect the CCTV footage?” and “Did Y declare a conflict of interest”, if, having undertaken adequate searches for such information, the authority determines that it does not hold recorded information responsive to those precise questions at the time of the Request, it is entitled to refuse the request pursuant to s1(1)(a) FOIA. That is the extent and limit of the burden on the authority.

There can seldom be absolute certainty that a public authority does not hold requested information. The Tribunal’s test is whether such information is held on the balance of probabilities, that is to say, whether it is more likely than not. In applying that test, the Tribunal considers the scope, rigour and efficiency of any searches undertaken by the authority.

On the basis of the evidence and submissions available to us by the close of the hearing, we were not satisfied that there was sufficient evidence before us as to those matters. Indeed, we were troubled by the conflicting accounts between the Decision Notice and HSENI as to the searches undertaken, and the absence of any substantive evidence as to what searches were undertaken. That is why we issued the further directions we did after the hearing, both to the Commissioner and HSENI.

We are satisfied that Mr Burns’ evidence of 16 pages, supported by a statement of truth, and exhibiting 144 pages of material, is a thorough and comprehensive account of matters: of HSENI’s procedures for dealing with FOIA requests, the structure of its information holdings, and how it conducted the searches in question. We have been greatly assisted by Mr Burns’ statement.

We are satisfied that the searches described by Mr Burns were sufficient adjudged against the closed nature of the Request, that is to say that the Request sought to know whether HSENI Officer A or HSENI Officer B asked HSENI Officer C to collect the CCTV footage, rather than asking an open question “Who asked HSENI Officer C to collect the CCTV footage?”.

We are satisfied from Mr Burns’ account that the HSENI officer who conducted the searches was diligent and conscientious in their searches.

We infer from the Appellant’s submissions that not only may he believe that the searches were inadequate, but that HSENI may have been reluctant to carry out a proper search or may have been motivated to withhold responsive information. In our view, Mr Burns’ detailed account of matters indicates that neither is the case.

We agree with HSENI that if, with HSENI’s assistance, the Appellant had reformulated the Request, then parts of the three witness statements, from which extracts have now been provided to the Appellant, addressing who asked HSENI Officer C to collect the CCTV footage, would appear to have been responsive to such reformulation. It is not for us to determine in this appeal whether any of their contents would have been exempt from disclosure pursuant to s30 FOIA.

We are also satisfied, on the balance of probabilities, that HSENI does not hold recorded information responsive to the second part of part 8 of the Request: “Did HESNI Officer C declare a conflict of interest when asked to pick up the CCTV footage as [they are] related through marriage to one of the people who was present the night Christopher was killed, and who ultimately was questioned under caution by the psni and the hseni.”

This is because, according to Mr Burns, the HSENI officer searched on HSENI's systems for any conflict-of-interest notifications, emails or documents in relation to HSENI Officer C and this case but returned no positive results. We are satisfied that the search terms used were appropriate. We have no reason not to believe that the searches did not return any positive results. If HSENI Officer C had made only an oral declaration of a conflict of interest, that would not be recorded information held by HSENI. Whether HSENI Officer C should have declared a conflict of interest, or whether any oral conflict of interest declared by HSENI Officer C should have been recorded, is not a matter for determination by us. FOIA regulates only the disclosure of recorded information held, not whether information should be recorded or held.

In conclusion on the subject of searches: we note from Mr Burns’ evidence that it appears that certain parts of the searches undertaken were not contemporaneously documented, for example, certain telephone calls undertaken within HSENI, and, of course, the call with the Commissioner about the searches. This has meant that HSENI, by Mr Burns, must now rely on the recollection of individuals in accounting to the Tribunal for certain aspects of the searches. We have no reason to believe that the recollections relied on are unreliable. However, it is strongly preferable, and in line with the Commissioner’s guidance to public authorities on determining whether they hold information, for authorities to keep a detailed record of the searches they have carried out, including the areas of the organisation searched, the keywords, accounts and time parameters used, and the staff consulted. In our view, that includes making attendance notes of telephone calls with staff consulted.

As regards the position of the Commissioner, we are surprised that he does not have, if he made, an attendance note of the call with HSENI addressing the searches undertaken by HSENI. His satisfaction as to the scope and sufficiency of HSENI’s searches was an important part of his decision. It transpired that he mis-stated the searches in the Decision Notice.

This is an appeal against the Decision Notice, in which the Commissioner decided variously that: HSENI does not hold recorded information “relating to Part 8 of the request” [2]; HSENI does not hold the requested information [17]; and HSENI does not hold recorded information which is “relevant” to the request [18]. Despite these slightly different articulations, we are satisfied that the Commissioner decided that HSENI does not hold the requested information.

We must determine this appeal by reference to the precise terms of the Request made: whether HSENI Officer A or HSENI Officer B asked HSENI Officer C to collect the CCTV footage. We are satisfied, on the balance of probabilities, that HSENI does not hold that information. That is because, as HSENI has now voluntarily disclosed to the Appellant, HSENI Officer D asked HSENI Officer C to collect it. We are also satisfied, on the balance of probabilities, that HSENI does not hold recorded information as to whether HSENI Officer C declared a conflict of interest.

Absent any evidence from HSENI or the Commissioner as to what account of its searches HSENI provided to the Commissioner, we are not satisfied that the Commissioner was entitled to conclude that HSENI does not hold the requested information. However, the Tribunal, which is independent of the Commissioner, has reviewed the account of those searches now given by Mr Burns’ evidence, and is satisfied, on the balance of probabilities that the requested information is not held.

To that extent the Decision Notice is in accordance with the law. The consequence of that finding is that the Appeal must be dismissed.

The Tribunal has shown this judgment in draft to the Respondents before its promulgation, in order that they might identify whether any CLOSED material has been inadvertently included in this judgment, and correct any typographical errors. That is the extent of commentary which has been sought from the Respondents on the judgment. The Commissioner did not respond. HSENI has simply confirmed that it has “no issue in relation to the reference to the closed material within the judgment”.

Throughout our determination of this appeal, we acknowledge the steadfast commitment of Malachy Rogers to his son, Christopher Rogers.