Mark Armstrong v The Information Commissioner

The Commissioner’s Decision Notice of 29 October 2025 forms the starting point for this appeal. It concerns the Appellant’s complaint about a request made on 27 November 2024 for “all information” held by Humberside Police relating to the tape recording of 101 calls from members of the public. The request was clarified by the Appellant as follows:-

The Commissioner records as follows that:-

In the Decision Notice, the Commissioner addressed each aspect of the request in turn. He concluded that the police were entitled to rely on section 21 of the Freedom of Information Act 2000 (FOIA) in relation to part one of the request, concerning the legislative basis for recording calls, on the basis that this information was reasonably accessible to the applicant by other means.

However, he reached the opposite conclusion in respect of part two, relating to retention and deletion. In that regard, he found that the information relied upon by the police was not in fact reasonably accessible, noting in particular deficiencies in the links provided and the extent to which relevant material was either unavailable or insufficiently identified.

The Commissioner further recorded that the police had, in the course of the investigation, stated that no separate local policies or procedures existed in relation to 101 call recordings, and therefore that no information was held in respect of part three. As to part four, the police had confirmed that such calls are recorded, and that aspect of the request was not pursued further.

The central feature of the Decision Notice, however, lies in the Commissioner’s treatment of the request taken as a whole. He concluded that the police had “unreasonably restricted the scope of the request” by treating the four identified categories as exhaustive. In doing so, they failed properly to engage with the breadth of the request as one for “all information” relating to the recording of 101 calls. This error, in the Commissioner’s view, necessarily undermined the adequacy of the searches undertaken. Searches directed to an artificially narrow understanding of the request could not be relied upon to identify all relevant information.

Applying the civil standard of the balance of probabilities, the Commissioner was not satisfied that the police had identified all information held within scope. He therefore found a breach of section 1(1)(a) FOIA. The remedy ordered reflected that conclusion. The Commissioner required the police to provide a fresh response to part two of the request, without reliance on section 21, and more generally to conduct further searches directed to the full scope of the request and issue a new response accordingly.

We should note here that we do not know what steps the Humberside Police have taken thereafter in response to the decision notice. If it has complied with it, then it will have conducted fresh searches and issued a fresh response to the Appellant.

The Appellant’s challenge is, in substance, that the Commissioner did not go far enough in the Decision Notice. He advances arguments directed both to the correctness of the section 21 FOIA finding and to the adequacy of the Commissioner’s treatment of searches and remedy. He also raises a broader procedural concern framed in terms of Article 6 ECHR, referring to what he says is reliance on “closed material”.

The appeal grounds argue that, although the Commissioner identified certain shortcomings in Humberside Police’s handling of the request, the decision failed properly to address the full extent of the authority’s errors and did not provide an adequate remedy.

The Appellant contends, first, that the Commissioner erred in law in accepting that section 21 FOIA could be relied upon in respect of part 1 of the request, namely the legislative basis for recording 101 calls. It is said that the information was not in fact “reasonably accessible” at the relevant time. The Police had provided a defective link, which did not enable access to the material, and the Privacy Notice to which the Commissioner referred contained only general statements about data processing and policing functions. It did not identify the specific statutory authority permitting the recording of such calls. In those circumstances, the Appellant argues that the requirements of section 21 FOIA—both as to accessibility and as to providing clear and precise directions to the information—were not satisfied.

Secondly, the Appellant submits that the Commissioner failed properly to address the scope of the request. The request was expressly framed in broad terms, seeking “all information” held in relation to the recording of 101 calls. While the Commissioner accepted that Humberside Police had unreasonably confined their consideration of the request to the four illustrative categories identified by the Appellant, the Appellant maintains that the consequential remedy—namely a direction to issue a fresh response following further searches—was insufficient. It is argued that the Commissioner ought to have required a more comprehensive and structured approach to identifying all information falling within the full scope of the request.

Thirdly, complaint is made about the Commissioner’s treatment of the adequacy of searches. The Appellant argues that Humberside Police conducted only limited and narrowly framed keyword searches and that the Commissioner failed to subject those searches to proper scrutiny. In particular, the searches did not extend to obvious and potentially relevant sources such as technical documentation relating to the recording system, internal communications, training materials, incident reports, or maintenance records. The Appellant contends that, in accordance with established guidance, reasonable and proportionate searches require a broader and more considered approach than that undertaken.

The Commissioner’s response supports the Decision Notice.

In his reply to this dated 26 November 2025, the Appellant advances a procedural challenge based on Article 6 ECHR. He submits that the Commissioner’s investigation relied upon material that has not been disclosed to him, which he describes as a “closed file”. In his case, the use or potential reliance on such material undermines the fairness of the proceedings. He argues that he is placed at a significant disadvantage because he is unable to test the evidence relied upon by the Commissioner or the public authority, and cannot challenge its completeness or accuracy.

On that basis, the Appellant contends that the procedure is incompatible with the requirements of a fair hearing. He submits that the Tribunal must either direct disclosure of any such material or exclude it from consideration altogether, and that absent such steps his right of appeal is rendered ineffective.

He asks the Tribunal to:-

Section 21 of the FOIA provides that information is exempt from disclosure where it is reasonably accessible to the applicant by other means. The question is not whether the public authority has provided a perfect or convenient route to the information, but whether, viewed objectively, the information is in fact available to the applicant without recourse to a formal disclosure under the Act.

The Commissioner’s guidance, reflected in the Decision Notice, identifies three central considerations. First, the information said to be accessible must correspond in substance to that requested. Secondly, the authority must provide sufficiently precise directions to enable the applicant to locate the material without undue difficulty. Thirdly, the information must be reasonably accessible to that applicant, having regard to the particular circumstances of the case.

Section 1(1)(a) FOIA imposes an obligation on public authorities to confirm or deny whether they hold information falling within the scope of a request. Where a dispute arises as to whether information is held, the issue is determined by reference to the balance of probabilities. The question is whether, on the evidence available, it is more likely than not that relevant information is held (or was held at the time of the request).

In practice, that assessment depends heavily on the nature and adequacy of the searches undertaken by a public authority. The Commissioner and the Tribunal do not proceed by speculating as to what information ought to exist. Rather, they examine the steps taken by the authority to identify information, including the systems searched, the search terms used, and the explanations provided as to record-keeping practices.

A critical feature of this exercise is that the adequacy of any search is contingent upon a correct understanding of the scope of the request. If the request is misconstrued, and searches are conducted on an artificially narrow basis, the results of those searches cannot reliably establish what is or is not held.

In relation to the procedural point raised by the Appellant we should make it clear that no application for closed material has been made or granted in these proceedings, and a closed file has not been considered by the Tribunal. The appeal has been determined entirely on the open material available to all parties. There is no reference to a closed file in the Decision Notice. The Article 6 argument therefore does not arise on the facts of this case.

The Appellant’s challenge is directed at the Commissioner’s conclusion that the information requested at part one—“the legislation that permits” the recording of 101 calls—was reasonably accessible by other means. The Appellant places emphasis on the fact that the original response included an incorrect or non-functional link, and upon what he characterises as the absence of any specific statutory provision expressly authorising call recording.

The defective link is clearly a matter of some concern at the level of good administrative practice. However, s21 FOIA is concerned with whether the information is reasonably accessible to the applicant, not whether the authority has, at the first attempt, provided a flawless signpost to it. The Commissioner was entitled to consider the position in substance, including the corrected explanation subsequently provided.

The Appellant’s argument also rests on an assumption that there must exist a discrete statutory power directed specifically to the recording of 101 calls, and that only information about such a provision would answer the request. We do not accept that premise. The recording of calls in the context of policing is not an activity that necessarily derives from a specific bespoke statutory source. In our view it is an operational aspect of the discharge of statutory policing functions, and, therefore forms part of the processing of personal data for law enforcement purposes.

The material identified by the Commissioner—drawn from publicly available sources including the privacy information published by the Humberside Police—locates that activity within the broader statutory framework governing policing and data processing. It refers, in terms, to the legislative basis for those functions and to the legal regime under which personal data is collected and processed. In our view where the legal basis is distributed across a framework of statutes and principles governing policing and data processing, a response pointing to that available framework is sufficient.

Thus in our view the Commissioner was therefore correct to conclude that section 21 FOIA was engaged in relation to the information sought for this aspect of the request.

By contrast, in relation to information sought about retention and deletion, the Commissioner found that the purported availability of information already in the public domain relied upon by the police did not meet the statutory test. Material was either not accessible in practice, insufficiently identified, or dependent upon sources that were not publicly available (see paragraph 29 of the Decision Notice). The Tribunal agrees with that conclusion and the requirement for the Humberside Police to reconsider that part of the request. As mentioned above we do not know what further steps Humberside Police have, in fact, taken.

The Commissioner found that the police had confined their searches to the four illustrative categories identified by the applicant, rather than addressing the wider request for “all information”. In those circumstances, he could not be satisfied that all relevant information had been identified.

The consequence was a finding that the authority had breached section 1(1)(a) FOIA. The appropriate remedy, consistent with the statutory scheme, was to require the authority to revisit the request and to conduct further searches directed to its full scope. FOIA contemplates that this may be an iterative process: if the subsequent response remains inadequate, the matter may be pursued further through the same mechanisms.

Those findings are, in our view, plainly correct. Where a request is misconstrued at the outset, the adequacy of any search conducted on that basis is necessarily undermined. The Commissioner did not “accept” inadequate searches; he rejected them, and he did so for cogent reasons.

The Appellant’s real complaint is not that the Commissioner failed to identify the defect, but that he did not go further and prescribe, in detail, the searches that must now be undertaken or the categories of documents that must be located. The Appellant has identified a number of such categories—technical documentation, training materials, audit records, and so forth—which he submits must exist and must be within scope.

However, the question before the Commissioner was whether, on the material then available, the authority had complied with its obligations under section 1 FOIA. The answer, correctly, was that it had not, because it had approached the request on an unduly narrow basis and must reconsider the request.

The Commissioner has identified the error, required it to be corrected, and left open the possibility of further challenge if the subsequent response proves deficient. There is no error of law in that approach. The statutory scheme does not require the Commissioner to supervise the minutiae of the authority’s internal search processes. His role is to secure compliance with the Act. If, following compliance with the Decision Notice, the authority’s response remains inadequate, the Appellant retains the right to pursue the matter further. That is the mechanism provided by FOIA.

The Decision Notice reflects an appropriate exercise of the Commissioner’s functions. It distinguishes between what can properly be determined on the material then available and what requires further investigation by the public authority. It upholds the request in substance by requiring a fresh and wider-ranging response, while rejecting only those aspects of the Appellant’s case that cannot be sustained in law.

The appeal is DISMISSED. The Decision Notice is UPHELD. As we are upholding the Commissioner’s decision, we do not have the power to issue ‘a binding order specifying the nature and extent of the further searches the Humberside Police must undertake’ as requested by the Appellant.