When is a Public Authority Not Holding Information Under FOIA? Tribunal Explains

NCN: [2026] UKFTT 00984 (GRC) Case Reference: FT/EA/2025/0435 First-tier Tribunal (General Regulatory Chamber) Information Rights Decided without a hearing Decision given on: 02 July 2026 Before JUDGE HEALD MEMBER MARLEY MEMBER WOLF Between [APPELLANT] Appellant and THE INFORMATION COMMISSIONER Respondent Decision: The appeal is dismissed. REASONS 1. This decision relates to an appeal brought by [APPELLANT] pursuant to section 57 Freedom of Information Act 2000 . It is in respect of a decision notice issued by the Respondent on 17 November 2025 with reference IC-383215-Q1B2 by which the Respondent decided that, on the balance of probabilities, the Foreign, Commonwealth & Development Office did not hold information in scope of [APPELLANT]'s request for information of 3 February 2025.

2. What follows is a summary of the submissions, evidence and our view of the law. It does not seek to provide every step of our reasoning. The absence of a reference to any specific submission or evidence does not mean it has not been considered. In this decision page numbers indicated by their inclusion in brackets refer to pages of the bundle.

3. In this decision the following definitions are used: - Freedom of Information Act 2000 FOIA The Respondent the IC The IC's decision notice the DN Request for information the Request The Foreign, Commonwealth & Development Office the FCDO Upper Tribunal & First-tier Tribunal UT & FtT Non-binding guidance issued by the IC the Guidance Witness statement WS 4. The appeal was decided without a hearing as provided for by paragraph 1 of the Directions of 1 May 2026 and allowed by the Tribunal by rule 32(1) The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. Evidence and matters considered 5. For the appeal we had the hearing bundle of 197 PDF pages which included [APPELLANT]'s WS dated 27 January 2026. We also had [APPELLANT]'s bundle of 27 pages which contained [APPELLANT]'s WS of 19 May 2026 and exhibits. Background 6. [APPELLANT] has in his possession a copy of a certificate (25) in the name of Her Majesty Queen Elizabeth II dated June 1955 and signed by the Governor of what was then known as Somaliland. The certificate had been awarded to [NAME] in recognition of his loyal service to the Crown and the valuable services performed by him with devotion to duty in the Haud Constabulary. [APPELLANT] says that the original of this certificate was lost during the civil war but that it is of significant importance to his family history as well as forming part of the historical record of the British administration at the time.

7. In December 2024 [APPELLANT] asked the Royal Archives about this certificate but they were unable to assist and said: - "Unfortunately, I am unable to help you. As you know the certificate was officially issued in the name of Her Majesty Queen Elizabeth II but it was actually issued by the Governor and Commander in Chief of Somalia and he signed the certificate. Any original documents will have been held by the office of the Governor and Commander in Chief. My best suggestion to you is that copies of some documents may have been forwarded to the Foreign and Commonwealth Office..."

8. The Request about the certificate was then made to the FCDO (75). FOIA 9. FOIA provides that any person making a request for information to a public authority is entitled to be informed in writing if that information is held (section 1(1) (a) FOIA) and if that is the case to be provided with that information (section 1 (1) (b) FOIA). Not held 10. By section 1(4) FOIA "information" in section 1(1) is "the information in question held at the time when the request is received..." and by section 84 FOIA is "information recorded in any form."

11. We considered various legal authorities on the question of "not held" such as Preston -v- the Information Commissioner and The Chief Constable of Yorkshire Police [2022] UKUT 344 ACC, Bromley and others -v-Information Commissioner and the Environment Agency EA/2006/0072, Jeremy Clyne v IC and London Borough of Lambeth EA/2011/0190 and Oates v Information Commissioner and Architects Registration Board EA/2011/0138 and the Guidance. From these it can be seen that: - (a) there will not usually be absolute certainty about whether in-scope information is held or not (the Guidance and Preston at 29); (b) in considering this question the IC and Tribunal should use the balance of probabilities test (see Preston at para 30); (c) it may be that the information should exist but a failure to record and/or retain information does not mean that it is held which is not a breach of FOIA (see Preston at para 30); (d) "As a general principle, the IC was...entitled to accept the word of the public authority and not to investigate further in circumstances, where there was no evidence as to an inadequate search, any reluctance to carry out a proper search or as to a motive to withhold information actually in its possession..." ( see Oates at para 11 )

12. We noted and agreed with the decision in Bromley that:- "13...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. " Role of the Tribunal 13. In the GRC1 [APPELLANT] asked the Tribunal to provide these outcomes: - "I am requesting that the Tribunal allows my appeal and sets aside the decision of the Information Commissioner. I ask the Tribunal to direct the Foreign, Commonwealth & Development Office (FCDO) to:

1. Conduct a further, thorough search of all relevant archives, records, and holdings (both digital and physical), including colonial, local, military, and police records, that may relate to the Certificate of Honour awarded to [NAME] in 1955.

2. Provide clear guidance on whether a replacement certificate can be issued or any other official documentation relating to the award can be provided.

3. Assist in identifying any relevant administrative or ephemeral records that could substantiate the issuance of the certificate or accompanying medal."

14. However, the Tribunal's role in an appeal brought under section 57 FOIA is as set out in section 58 FOIA which provides that: - (1) If on an appeal under section 57 the Tribunal considers— (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

15. We had regard to authorities such as NHS England -v- Information Commissioner and Dean [2019] UKUT 145 (ACC) and Information Commissioner v Malnick and Advisory Committee On Business Appointments [2018] UKUT 72 (AAC) . The UT (see [2026] UKUT 199 (AAC) ) has allowed an appeal from the FtT decision in Peter Wilson -v- The Information Commissioner [2022] UKFTT 0149 on the question of closed material and gisting but as regards the role of the FtT we agree that: - "30...the Tribunal’s statutory role is to consider whether there is an error of law or inappropriate exercise of discretion in the Decision Notice. The Tribunal may not allow an appeal simply because it disagrees with the Information Commissioner’s Decision. It is also not the Tribunal’s role to conduct a procedural review of the Information Commissioner’s decision-making process or to correct the drafting of the Decision Notice.” 16. In Forstater v Information Commissioner and others [2023] UKUT 303 (AAC) the UT, at para 40, said that while the burden of proof rests with an appellant except where statute expressly or impliedly provides otherwise "(3)...the concept of the burden of proof is of secondary importance in tribunal proceedings which involve a full merits review, since to apply strict burdens of proof may prevent the tribunal from properly discharging its responsibility to decide the facts for itself and/or exercise any discretion afresh..." The Request to appeal in summary 17. On 3 February 2025 [APPELLANT] made the Request which asked, after setting out the background: - “...I would like to explore the possibility of obtaining a copy of the original certificate or any related documentation. The certificate was originally accompanied by a medal, and I have attached a copy of the document for your reference. Our family is eager to preserve and honor [NAME]’s legacy. If there are any steps we can take to retrieve a formal copy or obtain an official acknowledgment, I would be deeply grateful for your guidance.” 18. The FCDO asked for this to be clarified and [APPELLANT] responded as follows: - “...By "any related documentation," I meant there was a medal that came with the certificate, which was also lost during the war, and if there are any other reports written about his good work.” 19. In its reply on 4 March 2025 the FCDO said that it did not hold any information relevant to the Request. [APPELLANT] asked for an internal review and said: - “...I respectfully request a review of the response. My original request concerns the honour certificate and accompanying medal awarded to my late [NAME] in 1955. These items were unfortunately lost during the Somali War. At the time, Sir Theodore Ouseley Pike served as the Governor of the British Somaliland Protectorate (1954-1955) . If the original items cannot be located, I would greatly appreciate your assistance in facilitating the issuance of a replacement certificate, should that be possible. I would be grateful for your assistance in resolving this matter. Please feel free to contact me if any further information is needed to support your review. I have enclosed a copy of the certificate and your original response for your reference.” 20. The FCDO maintained its position after an internal review but did provide suggestions on how [APPELLANT] might continue the search. 21. [APPELLANT] complained to the IC on 2 May 2025 (81). This said: - "... My original request sought information about a Certificate of Honour and medal awarded to my late [NAME] in 1955. The FCDO concluded that no information was found and did not provide sufficient detail on their search process. They also failed to advise on alternatives, such as consulting The National Archives, which may hold relevant records, or providing guidance on obtaining a replacement certificate., I believe the FCDO did not conduct a thorough search or provide adequate assistance, breaching their obligations under the Freedom of Information Act 2000 ..."

22. Following an investigation, which included receiving information from the FCDO on 29 October 2025 (101), the IC issued the DN in which his decision was recorded that, on the balance of probabilities, the FCDO does not hold information falling within the scope of the Request. Appeal 23. By a form GRC1 dated 24 November 2025 [APPELLANT] appealed the IC's decision in the DN. The reasons for the appeal can be seen in [APPELLANT]'s letter of 17 November 2025 (13), in section 8.1 of the GRC1 (37) and the separate note (44) in which [APPELLANT] says the DN is wrong for 5 reasons being: - "1. Insufficient Search Scope: The FCDO only searched specific departments and digital records, neglecting other potential sources such as colonial archives or physical records, which may still contain relevant information and: - 2. Lack of Guidance on Alternative Sources;

3. Procedural Inadequacy;

4. Personal and Historical Significance; and 5. Lack of Plans for Colonial-era Records."

24. The IC opposes the appeal. Issues 25. The issue for the Tribunal in this appeal is to decide whether it agrees that on the balance of the probabilities the FCDO did not hold any relevant in scope information at the date the Request was received. We noted all the grounds but in our view grounds 2-5 were not relevant to the held/not held issue.

26. At point 2 [APPELLANT] says that there was a lack of guidance on alternative sources and (44) "While the FCDO suggested The National Archives (TNA), they did not provide sufficient assistance on how to find a replacement certificate or related documents. This guidance is crucial, as the original certificate was lost during the Somali War." Without deciding if this is a fair criticism in our view doing so would fall outside the FCDO's obligations in section 1 FOIA.

27. At point 4 [APPELLANT] refers to the personal and historical significance of the information requested and says " The certificate and medal awarded to [NAME] are of personal and historical importance, and the FCDO’s failure to locate them limits the preservation of this vital historical record." We accept that [APPELLANT] has a personal interest in the information requested however FOIA is "requester blind". We also do not challenge his view that the information has historical importance. However, even if he is correct, that does not indicate that the DN is wrong in law and the question is whether the information was or was not held and is not whether it should have been.

28. At point 5 [APPELLANT] refers to the "Lack of Plans for Colonial-era Records." He says "The decision did not mention any plans to address issues related to documents and certificates from the colonial period, which are crucial for the countries affected. These records are historically significant to the people and nations they relate to, and resolving these issues is vital for preserving history." This does not assist in deciding if the information existed and even if might it does not amount to an effective challenge to the DN.

29. At point 3 [APPELLANT] says that " The Commissioner did not consider whether the FCDO could help identify administrative records or other documents that could support a replacement certificate, despite the possibility of such records existing but not yet located or catalogued." In our view this ground does not fall within the scope of FOIA and at most might indicate that the FCDO had not fully carried out its obligation to give advice and assistance by section 16 FOIA which says: - "(1) It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it"

30. In our view, noting the request for a clarification, the steps that were taken and the additional advice that was given to [APPELLANT], the FCDO discharged its section 16 FOIA obligations at least to the extent that it would have been reasonable to expect. The FCDO's position on the issue 31. It appears that, to deal with the Request the FCDO, having sought clarification examined the copy of the certificate and considered where to search by reference to its content. They: - (a) consulted the Honours Secretariat because "we considered that they were the team most likely to hold or have knowledge of potential honours-related records" but it did not appear to them that the certificate was an " honour, decoration or medal" and they did not hold the information requested; (b) asked the FCDO historians who said they did not hold information but provided potential search references at the National Archives; (c) made digital searches at the National Archives; (d) made a search of the FCDO Archive Inventory; and (e) searched physical reference indexes containing names appearing within files (1950–1995) for the certificate holder’s name in 1955.

32. The FCDO told the IC that they used the following search terms individually or combined "if too generic" • Certificate: Police, Military, Somaliland, Haud, Somalia • Honor / Honour Somalia, Somaliland • Honor / Honours – led to file CO 145/245 open at TNA but appears to be generic honours information. No information from this file is held by the FCDO. • “Eloji” “Eloji Award”, “Eloji Haud” (Surname of subject) “Yusuf Award” “Yusuf Haud” (Middle name of subject)

33. They thought about where the information might be held and said: - "It remains unclear whether individual records would have been held by the then Foreign Office, Colonial Office, or Governor’s Office, or whether a medal accompanied the certificate. Administrative or ephemeral records may have existed to facilitate the Governor’s signing, but we have not identified any information to substantiate this." The IC's position on the issue 34. In the Response the IC, in summary, says that he considers the search to have been " proportionate and reasonable" and that he " 25... remains satisfied that FCDO directed its searches and enquiries accurately in order to determine what information was held and has no reasons to doubt the representations from FCDO." The [APPELLANT]'s position on the issue 35. In the 19 May 2026 WS [APPELLANT] set out why, in his view, the evidence exhibited indicated that the records did exist and why "related documents may have been forwarded to the Foreign and Commonwealth Office." He points to: - (a) the advice from the Royal Archives that the information may have been forwarded to the FCDO; (b) his understanding that relevant records would "ordinarily have been retained within government archival systems" and " Annual honours lists and related recommendations were routinely submitted by colonial governors to the Crown or relevant government department." (c) the transfer in August 2025 of " more than 307,000 digitised colonial records dating from 1907 to 1968 to Kenya, demonstrating the continued preservation and management of colonial-era archives" (d) a Guardian article dated 18 April 2012 , which "...confirms the existence of “migrated archives” relating to former British colonies." (e) confirmation in The National Archives catalogue of "the existence of records within the FCO 141 “Migrated Archives” series." 36. [APPELLANT] also challenges the adequacy of the FCDO search. He said that the searches appeared "limited in scope" (13) and neither s ufficiently comprehensive nor demonstrably reasonable in the circumstances of this request" (see 19 May 2026 WS) . He set out a number of potential sources of archival material as follows: - • CO 922 series – Somaliland Government Gazettes (police/military circulars 1950–1960) • CO 535 / CO 537 – Colonial Office correspondence on personnel and administration • Relevant War Office (WO) series if service had military aspects • Police or military gazettes held at The National Archives (TNA) and said that in his view "Given the local and ephemeral nature of the award, a thorough review of these sources could yield evidence of the certificate and related service records."

37. In this WS he also said that in his view: - (a) The searches appear to have been confined primarily to modern or digitised record systems, without adequate consideration of archival or legacy holdings; (b) There is no evidence that records held in non-digitised or historical archives, including those of predecessor bodies such as the Colonial Office, were properly consulted; (c) It is not apparent that alternative spellings, historical terminology, or colonial-era descriptors were incorporated into the search strategy, notwithstanding their likely relevance; (d) Records relating to police and security awards may have been treated as confidential and could have been held in special or restricted collections, yet there is no indication that such collections were searched.

38. In the WS of 27 January 2026 he also said that the search was not sufficiently comprehensive because: - "The searches appear to have been narrowly framed, relying primarily on limited digital searches or selected record series, without adequately addressing: older, non- digitised colonial records; registers or lists of honours; or correspondence files relating to colonial administration in Somalia. There is insufficient evidence that the FCDO identified which specific departments or predecessor bodies were responsible for issuing or recording such certificates in 1955, or that targeted searches of those records were undertaken. It is unclear whether the FCDO adequately considered alternative spellings of names, transliterations, titles, or administrative references commonly used in colonial-era records. Where records may have been transferred to other archives, including The National Archives, there is no clear evidence that such transfers were properly traced, or that confirmation was obtained that no relevant material exists elsewhere" 39. [APPELLANT]'s view is that the FCDO should carry a " full and proper search of all relevant archival sources, including legacy, special, and restricted collections." Review 40. It is clear that [APPELLANT] has given a considerable amount of thought as to why the information will have existed, why the FCDO had it or should have had it, why it is important and what additional searches could and should have been done by the FCDO and others.

41. However, the FCDO's obligation goes only as far as to carry out reasonable searches and in our view they did so because they: - (a) first checked to make sure they understood the Request; (b) reviewed what had been provided (in this case the copy certificate) and concluded, in our view sensibly, that the Honours Secretariat would best placed to know the answer; (c) then asked for help from the FCDO historians; and (d) carried out searches using sensible search terms.

42. We also saw no evidence of there having been any reluctance to carry out a proper search or that for some reason the FCDO was motivated to withhold information.

43. We accept that the FCDO might at one time have held in-scope information and even that perhaps it should have done. However, while there is no absolute certainty that the FCDO did not hold in-scope information when the Request was received, we have concluded, on the balance of probabilities and on the basis of a reasonable search, that it did not. Decision 44. Accordingly, for the reasons set out above, the DN was in accordance with the law and to the extent that it involved an exercise of discretion the IC exercised it correctly.

45. The appeal is therefore dismissed. Signed: Judge Heald Date: 30 June 2026