Deborah Cox v The Information Commissioner & Anor

This appeal concerns two discrete issues arising from a Freedom of Information request made by the Appellant to the Home Office on 4 March 2025 concerning the regulation of animal research establishments under the Animals (Scientific Procedures) Act 1986 (“ASPA”). The first: Q3- “3)Why was [sic] your own regulations broken in that ‘Each establishment will receive a full system audit at least every three years if it does not hold special species and at least every year if it holds special species.” concerns whether the Home Office held recorded information answering the Appellant’s question as to why published audit guidance appeared not to have been followed.

The second Q5)[Establishment B] for 2022 – 2024 what sort of audits wereperformed and when and may I please have redacted copies (redact licence numbers and personal details) of all audits 2022-2024 inclusive.” - concerns whether the Home Office was entitled, pursuant to section 38(2) FOIA, neither to confirm nor deny whether it held audit information relating to Envigo RMS Belton.

Although both issues arise from the same request, they raise fundamentally different questions. The first concerns the existence of recorded information. The second concerns the application of an exemption and the evidential basis for a neither confirm nor deny response. The Tribunal has therefore considered each issue separately and on its own facts.

Having considered the documentary evidence, and the oral evidence of the witness of Ms Jenkins, the submissions of the parties and the relevant authorities relied upon by them, the Tribunal dismisses the appeal in relation to Request 3 and allows the appeal in relation to Request 5.

The appeal arises in the context of the statutory framework governing the use of protected animals for scientific purposes. Such activities are regulated under the Animals (Scientific Procedures) Act 1986 ("ASPA"). The Home Office, acting through its Animals in Science Regulation Unit ("ASRU"), is responsible for the administration and oversight of that regulatory regime.

As part of that regulatory framework, establishments licensed under ASPA are subject to inspection and oversight by the Home Office. The Appellant, who has a longstanding interest in matters concerning animal welfare and the regulation of animal research, examined information published by the Home Office concerning inspection and audit activity undertaken at licensed establishments.

In reviewing that material, the Appellant formed the view that there appeared to be a disparity between published guidance referring to Full System Audits and information indicating the number of audits that had in fact been undertaken during the relevant period. The Appellant sought further information in order to understand the apparent discrepancy and to obtain information relating to audit activity at the Envigo RMS Belton establishment.

The above two elements of the request are relevant to the present appeal.

The Home Office provided a substantive response on 31 March 2025.

So far as the first issue was concerned, the Home Office's position was that it did not hold recorded information answering the Appellant's question as to why the apparent divergence had occurred.

In relation to the Envigo-related request, the Home Office neither confirmed nor denied whether information was held. It relied upon section 38(2) FOIA, maintaining that confirmation or denial would, or would be likely to, endanger the physical or mental health or safety of individuals associated with animal research establishments.

The Appellant remained dissatisfied with that response and sought an internal review on 31 March 2025.

On 30 April 2025, the Home Office completed its internal review and upheld its original position.

The Appellant subsequently complained to the Information Commissioner on 4 May 2025.

The Commissioner investigated the complaint and considered both the question of whether any further information was held and the Home Office's reliance upon section 38(2).

On 27 January 2026 the Commissioner issued Decision Notice IC-381512-N0T6. The Commissioner concluded that the Home Office was entitled to rely upon section 38(2) in respect of the Envigo-related request and did not require any further steps to be taken.

The Appellant lodged an appeal with the Tribunal on 4 February 2026.

In summary, the Appellant contended that the Home Office's position regarding the absence of recorded information was incorrect and that the evidential basis for the section 38(2) exemption had not been established.

The Information Commissioner resisted the appeal and supported the reasoning contained within the Decision Notice.

The Home Office likewise opposed the appeal. It maintained that FOIA confers a right of access to recorded information and not a right to receive explanations where no recorded information exists. It further maintained that confirmation or denial of the existence of audit records relating to the Envigo facility would create risks to persons connected with animal research establishments and that section 38(2) was therefore properly engaged.

Directions were given for the preparation of the appeal and the parties subsequently filed witness evidence, written submissions and the authorities upon which they relied.

The appeal came before the Tribunal on 26 August 2026.

The Tribunal heard oral submissions on behalf of the Appellant, and the Home Office. The Commissioner provided a written Response to the Grounds of Appeal. The Tribunal also considered the documentary evidence contained within the hearing bundle, the witness evidence filed (and where necessary tested at hearing by the parties & the panel) and the relevant authorities to which reference was made during the hearing.

Although the appeal arose from a wider request containing a number of questions, the issues ultimately requiring determination by the Tribunal were narrow. They concerned, first, whether recorded information was held for the purposes of Request 3 and, secondly, whether the Home Office had established the requirements necessary to justify the maintenance of a NCND response under section 38(2) FOIA in relation to Request 5.

The parties agreed that the appeal ultimately gives rise to the two principal disputes under FOIA. Although both arise from the same information request, they involve distinct statutory provisions and different legal questions together with the issue of the Public Interest.

Q. “Why was [sic] your own regulations broken in that ‘Each establishment will receive a full system audit at least every three years if it does not hold special species and at least every year if it holds special species.’

The Tribunal must determine whether, at the date of the request, the Home Office held recorded information answering the Appellant's request for an explanation as to why published guidance concerning Full System Audits appeared not to have been followed in practice. The Home Office did explain why it said no information was held, namely that it did not accept that any breach had occurred. The Decision Notice records the Home Office's position that, because it considered the inspection regime had complied with the legal requirements, it could not hold information explaining why a breach occurred where no breach was accepted.

In addressing that issue, the Tribunal must consider the evidence concerning the searches undertaken by the Home Office and determine, on the balance of probabilities, whether relevant recorded information was held. The Tribunal must also bear in mind the distinction drawn by FOIA between information which is recorded and held and explanations or answers which a public authority may be capable of constructing from information held.

The second issue concerns Request 5 and the Home Office's reliance upon section 38(2) FOIA. Q5. 5)[Establishment B] for 2022 – 2024 what sort of audits were performed and when and may I please have redacted copies (redact licence numbers and personal details) of all audits 2022- 2024 inclusive.”

The Tribunal must determine whether confirmation or denial of the existence of information relating to the Envigo RMS Belton facility would, or would be likely to, endanger the physical or mental health or safety of any individual for the purposes of section 38(2).

In considering that question, the Tribunal must assess what information would be conveyed by confirming or denying whether the requested information is held;

If, and only if, section 38(2) is engaged, the Tribunal must consider the public interest test contained within section 2 FOIA and determine whether the public interest in maintaining the exemption outweighs the public interest in confirming or denying whether the information is held.

The Tribunal therefore addresses the issues in the following order:

We first considered Request Q3. The Appellant sought information explaining why published guidance indicated that establishments holding special species should receive annual Full System Audits whereas published information suggested that relatively few such audits had taken place during the relevant period.

We understand why the Appellant sought an explanation for what appeared to her to be a discrepancy between published guidance and published audit information. However, the question before us is not whether such a discrepancy existed, nor whether it called for explanation. The question is whether the Home Office held recorded information answering the request.

We remind ourselves that FOIA provides a right of access to information held by a public authority in recorded form. It does not require a public authority to create information, formulate explanations or answer questions where no recorded information containing the answer exists.

We considered the evidence relating to the searches undertaken by the Home Office, together with the witness evidence and documentary material before it. Having done so, we are satisfied, on the balance of probabilities, that the Home Office did not hold recorded information answering the question posed by the Appellant.

We accept that information was held concerning inspection activity, audit activity and regulatory oversight generally. However, the existence of information from which an explanation might be inferred is not the same as the existence of a recorded explanation. FOIA requires the Tribunal to determine whether information is held, not whether an answer could be constructed from information held.

For those reasons, we conclude that the Home Office was entitled to state that it did not hold recorded information answering Request Q3. The appeal in relation to that request is therefore dismissed.

We next considered Request Q5 and the Home Office's reliance upon section 38(2) FOIA.

We accept the evidence that animal research remains a controversial area capable of generating strong public opinion, protest activity and hostility directed towards those associated with research establishments. We further accept that individuals connected with such establishments may in some circumstances be exposed to harassment, intimidation or other unwelcome conduct. Those concerns are plainly capable of engaging section 38 in an appropriate case. The Decision Notice records the Home Office's position that, because it considered the inspection regime had complied with the legal requirements, it could not hold information explaining why a breach occurred where no breach was accepted.

However, section 38 requires more than evidence that a particular field of activity is controversial or that persons involved in that activity may be exposed to risk. The statutory question is whether confirmation or denial of the existence of the requested information would, or would be likely to, endanger an individual's physical or mental health or safety. We must therefore identify a sufficiently evidenced causal connection between the confirmation or denial sought and the asserted endangerment.

We recognise that a NCND response involves a question distinct from the disclosure of substantive information. The issue is not whether disclosure of underlying records might carry risks, but whether confirmation or denial of their existence would itself engage section 38(2).

In considering that issue, we asked three related questions:

We considered information already publicly available, including Companies House filings (including the description of the company’s activities in their field accounts at Companies house) and Concordat-related material and further, publicly available job descriptions.

We carefully considered whether the evidence established the requisite causal connection between confirmation or denial of the existence of the requested information and the asserted endangerment. We accept that opposition to animal research has on occasions, generated hostility, protest activity and conduct directed towards those associated with such establishments. The evidence therefore establishes the existence of a background risk capable, in principle, of engaging section 38.

However, the existence of a background risk is not, without more, sufficient to engage the exemption. The Tribunal must be satisfied that the particular confirmation or denial sought would itself create, contribute to or materially increase a real and significant risk to the physical or mental health or safety of an identifiable class of individuals.

Having considered the evidence as a whole, we find that it establishes a generalised concern regarding animal research activity but does not establish with sufficient specificity how confirmation or denial of the information requested in this appeal would itself give rise to exacerbate or materially increase the risk relied upon. Whilst the evidence demonstrates the possibility of hostility towards persons connected with animal research establishments, it does not demonstrate that the act of confirming or denying the existence of the requested information would itself be likely to result in the asserted endangerment.

We therefore find that the evidence before us establishes the existence of a controversial background context and a general risk environment but does not establish the necessary evidential link between the particular confirmation or denial sought and the alleged harm. Accordingly, the causal connection required by section 38(2) has not been made out on the facts of this case.

We therefore conclude that the requirements of section 38(2) were not established in relation to Request Q5. The appeal in relation to that request is therefore allowed.

In light of our conclusion that the Home Office has not established the requirements for engagement of section 38(2), it is unnecessary for us to determine the public interest balance, and our decision does not depend upon any assessment of that issue.

However, in deference to the submissions advanced by the parties, we briefly record that, had section 38(2) been engaged, we would have regarded the competing public interests as finely balanced. On the one hand, considerable weight attaches to the public interest in protecting individuals from risks to their health and safety and in ensuring that the statutory regulatory regime can operate effectively and without undue interference.

On the other hand, there is a significant public interest in transparency and accountability concerning the operation of the ASPA regulatory framework and in ensuring that the exceptional NCND mechanism is relied upon only where the statutory requirements have been established.

Had it been necessary to reach a concluded view, our concerns regarding the evidential basis connecting the requested confirmation or denial to the asserted endangerment would have been a material factor when assessing the weight to be afforded to maintaining the exemption.

Given our conclusion that section 38(2) is not engaged, it is unnecessary to determine the public interest balance, and we do not do so.

For the reasons set out above, we dismiss the appeal in relation to Request 3. Having considered the evidence as a whole, we are satisfied, on the balance of probabilities, that the Home Office did not hold recorded information answering the request made by the Appellant. The Freedom of Information Act 2000 confers a right of access to recorded information which is held by a public authority; it does not require a public authority to generate explanations or create information which does not exist in recorded form. The appeal in this regard is dismissed.

We allow the appeal in relation to Request 5. We accept that animal research is a controversial area capable of generating strong public reaction and accept that concerns regarding harassment, intimidation and risks to those associated with animal research establishments may, in an appropriate case, justify reliance upon section 38 of FOIA.

However, the issue before us is not whether such risks exist in a general sense. The statutory question is whether confirmation or denial of the existence of the information requested by the Appellant would, or would be likely to, endanger the physical or mental health or safety of any individual. We are not satisfied that the evidence before us established that necessary connection in the circumstances of this case.

Whilst the evidence demonstrated the existence of a potentially hostile environment surrounding some animal research activity, we were not persuaded that there was sufficient evidence to show that the particular confirmation or denial sought by the Appellant would itself create, contribute to, or materially increase a real and significant risk of endangerment. We have therefore concluded on the facts as presented at this appeal that the evidential threshold required by section 38(2) was not established.

This appeal has raised important issues concerning both the scope of the right of access conferred by FOIA and the circumstances in which a public authority may rely upon a neither confirm nor deny response under section 38(2). The Tribunal has determined those issues by reference to the statutory scheme, the evidence before us and the applicable legal principles.

Accordingly, and for the reasons set out more fully above, the appeal is dismissed in relation to Request 3 and allowed in relation to Request 5.

Our conclusion rests not upon any rejection of the legitimacy of the concerns advanced by the Home Office, but upon our assessment that the evidence did not establish the causal connection required by section 38(2) between the particular confirmation or denial sought and the endangerment asserted.

We wish to acknowledge the helpful submissions made on behalf of all parties.

Pursuant to section 58(1) FOIA, the Tribunal substitutes the following decision for Decision Notice IC-381512-N0T6.