Matthew Illsley v The Information Commissioner & Anor [2026] UKFTT 1219 (GRC)
INTRODUCTION
[1]This appeal is brought pursuant to section 57 of the Freedom of Information Act 2000 ("FOIA") against a Decision Notice issued by the Information Commissioner ("the Commissioner") on 16 December 2025 under reference IC-382740-Z4J8. The Decision Notice concerned a request for information made by the Appellant, Mr Matthew Illsley, to the Chief Constable of Hampshire and Isle of Wight Constabulary ("the Constabulary").[2]The request arose from the Appellant's interest in an external review said to have been conducted by Hampshire Constabulary into the investigation of the murder of Ivy Batten and the subsequent prosecution and conviction of Brian Parsons. The Appellant sought access to material associated with that review and, as the correspondence progressed, focused in particular upon what he maintained was the full and final report produced as part of that exercise.[3]The position adopted by the Constabulary evolved during the course of the request and the Commissioner's investigation. Following the internal review, the Constabulary refused the request under section 30 FOIA. However, during the course of the Commissioner's investigation and following further enquiries concerning the report sought by the Appellant, the Constabulary revised its position and relied instead upon section 12(1) FOIA. In the Decision Notice, the Commissioner concluded that the case was more appropriately analysed under section 12(2) FOIA than either the Constabulary’s original reliance upon section 30 FOIA or its subsequent reliance upon section 12(1). The Commissioner determined that the proper analysis fell under section 12(2) FOIA because the cost of establishing whether the requested report was held would itself exceed the statutory limit prescribed by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. The Commissioner therefore applied section 12(2) and concluded that the Constabulary was not obliged to confirm or deny whether the requested information was held.[4]The Appellant challenges that conclusion. He contends that the Commissioner placed undue reliance upon evidence supplied by the Constabulary despite what he characterises as a history of inconsistency and obstruction in the handling of his request. He further contends that the estimates relied upon by the Commissioner were unrealistic, unsupported by satisfactory evidence, and inconsistent with other information available concerning the storage and management of records relating to the review. The Appellant also argues that the report sought, concerns matters of significant public interest, including allegations relating to the investigation of a historic murder and the conduct of those involved and that the Commissioner failed adequately to engage with the significance of the Constabulary's previous statement that the report had already been located.[5]The appeal therefore requires the Tribunal to consider whether the Commissioner was entitled, on the material before him, to conclude that section 12(2) FOIA was engaged and, if so, whether there is any basis for interfering with the Decision Notice.[6]The Tribunal has considered the documentary evidence before it, including the bundle, the grounds of appeal, the written responses of the parties and the submissions advanced in these proceedings. Following the Commissioner’s confirmation that he no longer relied upon the closed bundle, the appeal proceeded on the basis of the open material before the Tribunal and the panel did not consider the closed bundle. We are grateful to all the parties for the detailed materials which they have provided.[7]For the reasons which follow, the Tribunal concludes that the appeal must be dismissed and the Decision Notice upheld.BACKGROUND
[8]BACKGROUND The Original Request On 1 February 2025 the Appellant submitted a request to the Constabulary which referred to the murder of Ivy Batten in 1987 and the subsequent conviction of Brian Parsons. The Appellant stated that he understood Hampshire Constabulary to have conducted an external review of the matter and requested disclosure of any documents or files relating to that review. He explained that he did not know the date of the review and therefore gave a broad date range extending from 1987 to 2024.[9]The request was expressed in broad terms. Whilst the Appellant made particular reference to the external review itself, the wording was not limited to any specific document and referred generally to "documents or files" associated with the review. It was therefore unsurprising that, at least initially, the request was understood as extending beyond a single report.[10]On 10 March 2025 the Constabulary responded. The response stated that Hampshire and Isle of Wight Constabulary did not hold the requested information and suggested that the Appellant contact Devon and Cornwall Constabulary if he had not already done so. The letter thus proceeded on the basis that no information falling within the scope of the request was held by the Constabulary.The Subsequent Correspondence
[11]The Subsequent Correspondence The Appellant did not accept that response. On the same day he questioned whether the requested material could genuinely have ceased to exist and asked the Constabulary to check its records again. He indicated that he found it difficult to believe that a document of such apparent significance could simply have disappeared without trace and sought clarification concerning what had become of the review if it was no longer retained.[12]Further exchanges followed over the course of the following days. Significantly, those communications reveal a gradual but increasingly clear shift in the Appellant's focus. Whilst the original request had referred generally to documents associated with the review, the Appellant's subsequent correspondence repeatedly referred to the review report itself. He questioned what had happened to the report, whether it had been transferred elsewhere, and whether it had been destroyed. He invited the Constabulary to treat his communications either as clarification of the original request or, if necessary, as a new request concerning the report.[13]The Tribunal notes this aspect of the chronology because it later assumed some significance in the Appellant's grounds of appeal. The Appellant contends that these communications demonstrate that, well before the Commissioner's investigation concluded, his interest had become focused upon obtaining the report itself rather than every document associated with the wider review. That submission forms part of the context against which the remainder of the appeal falls to be considered.The Internal Review
[14]The Internal Review On 14 March 2025 the Appellant requested an internal review. That request followed repeated assertions by the Constabulary that no relevant information was held. In seeking the review, the Appellant again focused upon the report and sought clarification concerning when it had been created and what had become of it.[15]The internal review outcome was issued on 22 March 2025. It represented a substantial departure from the position adopted by the Constabulary in its original response. Rather than maintaining that no relevant information was held, the Constabulary informed the Appellant that it had now located eighty-three boxes of material which fell within the scope of the request. The review outcome further stated that, following what was described as a random review of fifteen boxes, the final report had been located. The Constabulary nevertheless refused disclosure by reference to section 30 FOIA.[16]The contrast between the original response and the internal review outcome was marked. The Appellant understandably attached considerable significance to this change of position. From his perspective, a public authority which had initially asserted that no relevant information was held now appeared to be acknowledging both the existence of a substantial body of material and the existence of the very report he had sought. That history lies at the heart of many of the criticisms made by the Appellant throughout the appeal process.The Commissioner's Investigation
[17]The Commissioner's Investigation Dissatisfied with the outcome of the internal review, the Appellant complained to the Commissioner. In doing so he advanced a number of criticisms of the Constabulary's conduct. He asserted that the Constabulary had repeatedly failed to engage properly with his request, had adopted inconsistent positions concerning whether information was held, and had mischaracterised the true focus of his application. He maintained that he was in reality seeking the report itself and not the entirety of the underlying investigation material.[18]The Commissioner accepted the complaint for investigation. Initially, the focus of the investigation concerned the Constabulary's reliance upon section 30 FOIA. However, the course of the investigation became more complicated as further information emerged concerning the material that had been located and the nature of the report sought by the Appellant. During the investigation, the Constabulary revised its position on more than one occasion and at various stages, sought to rely upon a number of different exemptions and provisions within FOIA. The Commissioner did not simply accept those revised positions. Rather, he required further information, requested production of the material said to be the report and ultimately reached his own conclusion as to the proper statutory basis upon which the request should be analysed.[19]During the investigation (and in his appeal to the Commissioner) the Appellant clarified that he sought the full and final report rather than the wider body of review material. The Commissioner expressly informed both parties that he understood the request in those terms. Whilst the Commissioner described this as a narrowing of the request, the Appellant maintained that he had already made his position clear through earlier correspondence.[20]The significance of that clarification became apparent when the Constabulary provided material to the Commissioner which it believed represented the report sought by the Appellant. Having examined the document, however, the Commissioner concluded that it did not appear to be the final report. The Commissioner recorded that the document was undated, unsigned and appeared incomplete. In the Commissioner's assessment it represented only part of the review. Following discussions with the Commissioner, the Constabulary accepted that assessment and undertook further enquiries.[21]It was against that background that the Constabulary's position shifted once again. Rather than relying upon substantive exemptions from disclosure, the Constabulary ultimately contended that locating and identifying the final report would require searching through substantial quantities of historical paper records. It asserted that those records were held within eighty-three boxes which were not indexed and that the work required to determine whether the final report existed would significantly exceed the statutory cost limit.[22]The Commissioner accepted that evidence. He concluded that the case was properly analysed as one falling under section 12(2) FOIA rather than section 12(1). The Commissioner considered that the evidence demonstrated not merely that compliance with the request would be expensive, but that establishing whether the final report was held would itself exceed the statutory limit. The Decision Notice which forms the subject of this appeal was issued on that basis.[23]The Tribunal notes that, whilst the Commissioner found that the Constabulary had not provided advice and assistance in the manner ordinarily contemplated where section 12 is relied upon, he nevertheless concluded that no meaningful advice and assistance could realistically have been offered given the nature of the information sought and the circumstances of the request. No separate challenge has been pursued before the Tribunal in relation to that aspect of the Decision Notice and the Tribunal is satisfied that it does not affect the issues requiring determination in this appeal.[24]It is against that procedural and factual background that the Tribunal must consider the parties' submissions and determine whether the Commissioner was entitled to reach the conclusion that he did.ISSUES TO BE DETERMINED
[25]ISSUES TO BE DETERMINED Although the Appellant's grounds of appeal are detailed and raise a number of concerns regarding the conduct of the Constabulary and the Commissioner's investigation, the Tribunal considers that the issues requiring determination can be distilled into a number of central questions.[26]First, the Tribunal must identify the request which falls to be considered. The parties have, at various stages, adopted differing positions regarding the scope of the request. The Appellant maintains that, well before the conclusion of the Commissioner's investigation, he had made it clear that his concern was with the full and final report arising from the Hampshire review rather than every item of material associated with that review. The Tribunal must therefore consider the significance, if any, of the evolution of the request and whether the Commissioner correctly identified its scope when reaching his decision.[27]Secondly, the Tribunal must consider the effect of the Constabulary's changing position regarding the information sought by the Appellant. The Appellant relies heavily upon the fact that the Constabulary initially asserted that no relevant information was held, subsequently informed him that eighty-three boxes of relevant material existed and that the final report had been located, and ultimately advanced a case before the Commissioner which proceeded on the basis that further searches would be required in order to establish whether the final report existed. The Tribunal must determine whether those developments materially undermine the reliability of the evidence relied upon by the Commissioner.[28]Thirdly, and most significantly, the Tribunal must determine whether the Commissioner was entitled to conclude that section 12(2) FOIA was engaged. That issue requires consideration of the evidence concerning the Constabulary's record holdings, the searches which had been undertaken, the estimates relied upon by the Constabulary and accepted by the Commissioner, and the criticisms advanced by the Appellant concerning the realism and reliability of those estimates.[29]Fourthly, the Tribunal must consider the extent to which the Appellant's concerns regarding the public importance of the subject matter are relevant to the determination of the appeal. The Appellant relies upon the age of the underlying case, the alleged significance of the review, and what he says are continuing public concerns regarding the investigation and conviction. The Tribunal must therefore consider the extent to which such considerations bear upon the statutory question arising under section 12(2).[30]Finally, and standing back from the individual arguments advanced by the parties, the Tribunal must determine whether there is any basis upon which the Commissioner's Decision Notice should be set aside or varied.[31]The Tribunal emphasises at the outset that it is not concerned with determining whether the review report ought, as a matter of public policy or public interest, to be disclosed. Nor is it required to determine whether the Constabulary's handling of the request was exemplary or beyond criticism. The issue before the Tribunal is a narrower one, namely whether the Commissioner was entitled to conclude that the statutory conditions for the application of section 12(2) FOIA were satisfied. Whilst the broader concerns raised by the Appellant form part of the factual context, they cannot displace the statutory framework which governs the appeal.LEGAL FRAMEWORK
[32]LEGAL FRAMEWORK The right created by FOIA Section 1 of FOIA creates two distinct, though related, rights. The first is the right to be informed whether a public authority holds information of the description specified in a request. The second is the right, where such information is held, to have that information communicated to the requester, subject to the various exemptions and qualifications contained elsewhere within the Act.[33]The rights created by section 1 are not absolute. Parliament expressly recognised that there would be circumstances in which compliance with a request would impose an unreasonable burden upon a public authority. Section 12 of FOIA is one of the mechanisms by which that balance is achieved.Section 12 FOIA
[34]Section 12 FOIA Section 12(1) provides that a public authority is not obliged to comply with a request where it estimates that the cost of complying with the request would exceed the "appropriate limit" prescribed by regulation.[35]Section 12(2) deals with a different situation. It provides that a public authority is not obliged to comply with its obligation under section 1(1)(a), namely the duty to inform an applicant whether information is held, where the estimated cost of complying with that obligation alone would exceed the appropriate limit.[36]The distinction is significant. Section 12(1) concerns the cost of providing the requested information. Section 12(2) is concerned with the antecedent question of whether the authority can reasonably be expected to undertake the work necessary to establish whether the requested information is held in the first place.[37]In the Decision Notice, the Commissioner concluded that the present case fell into the latter category. His reasoning was that the Constabulary could not establish whether it held the final report sought by the Appellant without undertaking extensive searches of historical records and that the cost of doing so would exceed the relevant statutory limit.The Fees Regulations
[38]The Fees Regulations The costs which may be taken into account for the purposes of section 12 are prescribed by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.[39]The regulations provide that, when estimating the cost of compliance, a public authority may take account only of the costs reasonably expected to be incurred in determining whether information is held, locating information, retrieving information, and extracting information from documents. The regulations do not permit the authority to take account of every cost associated with responding to a request.[40]The appropriate limit applicable to the Constabulary was £450. Applying the prescribed hourly rate of £25 per hour, the practical effect of the regulations is that a public authority is not required to undertake work exceeding 18 hours for the purposes of complying with a request.[41]Accordingly, the question before the Commissioner, and now before the Tribunal, is whether the work required to establish whether the final report is held would reasonably be expected to exceed that threshold.The Tribunal's role
[42]The Tribunal's role It is common ground that the Tribunal's jurisdiction in an appeal under section 57 FOIA is a full merits jurisdiction. The Tribunal must form its own view of the relevant facts and reach its own conclusion regarding the application of the statutory provisions.[43]However, it is equally well established that section 12 cases are not concerned with whether a public authority could conceivably locate information if sufficient resources were devoted to the task. Nor is the question whether the Tribunal would itself have conducted searches differently. The issue is whether the estimate relied upon is a reasonable one within the meaning of the statutory scheme.[44]In that regard, the Tribunal has taken account of the authorities relied upon by the Commissioner, including the observation that an estimate need not be precise but must be "sensible, realistic and supported by cogent evidence". The Tribunal has also borne in mind the principle, referred to by the Commissioner, that section 12 operates as a threshold or "guillotine" provision. Once the statutory limit is exceeded, the Act does not require the public authority to undertake partial searches in an attempt to determine whether some information might be located.[45]The Tribunal has further borne in mind that the Appellant's concerns regarding the historical importance of the subject matter, the existence of a substantial public interest in understanding the circumstances of the review, and his criticisms of the conduct of the Constabulary are not irrelevant matters. Those matters form an important part of the factual context. However, they do not alter the statutory question arising under section 12(2), which remains directed to the cost of determining whether the requested information is held. The Tribunal's evaluation of the parties' submissions must therefore remain anchored to the requirements of the legislation rather than the wider merits of disclosure.[46]It is against that legal framework that the Tribunal turns to the parties' submissions and its analysis of the evidence.DISCUSSION AND FINDINGS
[47]DISCUSSION AND FINDINGS The Tribunal's approach The Tribunal has considered carefully the entirety of the documentary evidence before it, the Appellant's grounds of appeal, the response filed by the Commissioner and the position adopted by the Constabulary. In doing so, we have borne particularly in mind that the Appellant's challenge is directed not merely at the Commissioner's conclusion under section 12(2) FOIA, but at the process by which that conclusion was reached. A recurring theme throughout the Appellant's submissions is that the Commissioner accepted information provided by the Constabulary despite what the Appellant characterises as a history of inconsistency, obstruction and unreliability in the handling of his request.[48]The Tribunal does not consider that those concerns can simply be dismissed. The chronology disclosed by the bundle reveals a sequence of events which would reasonably have caused the Appellant concern. The Constabulary initially informed him that it held no relevant information. It subsequently informed him that eighty-three boxes of relevant material had been identified and that a final report had been located following a review of fifteen boxes. Thereafter, during the Commissioner's investigation, the position evolved further, culminating in the conclusion that the document which had been located did not appear to be the final report after all.[49]In the Tribunal's judgment, the existence of those shifts in position means that the Appellant was entitled to query both the reliability of the Constabulary's evidence and the soundness of the Commissioner's reliance upon it. The Tribunal has therefore approached the evidence with care and has resisted any temptation simply to assume that, because the Commissioner accepted the Constabulary's account, the matter requires no further scrutiny.[50]The Tribunal does not accept the Appellant's broader submission that the Commissioner merely accepted the Constabulary's evidence at face value. The documentary record demonstrates that the Commissioner repeatedly challenged the Constabulary's position during the course of the investigation. Indeed, the documentary record shows that the Constabulary advanced a number of different exemption-based positions during the investigation, none of which was simply accepted by the Commissioner. That history tends to undermine the Appellant’s criticism that the Commissioner merely adopted the Constabulary’s analysis without independent scrutiny. Initially, the Commissioner investigated the Constabulary's reliance upon section 30 FOIA. When the Constabulary amended its position, the Commissioner required further explanations, sought additional information, challenged the adequacy of the exemptions being relied upon, requested production of the document said to constitute the report, and subsequently rejected the Constabulary's own assessment of that document. The Commissioner did not therefore act as a passive recipient of the Constabulary's evidence. Rather, he tested that evidence, required further enquiries to be undertaken, and ultimately reached conclusions which were not always aligned with the Constabulary's position. This is a matter to which the Tribunal attaches some significance when evaluating the Appellant's criticisms of the investigative process.[51]Equally, however, it is important to identify with precision the question that falls to be determined. This appeal is not a public inquiry into the manner in which the Constabulary handled the request. Nor is it an appeal concerning the desirability of disclosure, still less a vehicle through which the Tribunal can resolve broader concerns regarding the underlying murder investigation or the review which followed. The issue before the Tribunal is a narrower one. We must determine whether the Commissioner was entitled to conclude that the statutory requirements of section 12(2) were satisfied. The Appellant's criticisms of the Constabulary are therefore relevant only to the extent that they bear upon that question.The Scope of the Request
[52]The Scope of the Request The Tribunal begins with the Appellant's submission that the Commissioner, and before him the Constabulary, misunderstood the true nature of the request. The Appellant argues that the request came to be treated as a request for all material associated with the review when, in reality, he was seeking the report itself. He submits that this misunderstanding infected the consideration of the request and led to an exaggerated assessment of the work required to deal with it.[53]Having reviewed the correspondence in detail, the Tribunal accepts that there is substantial force in this submission. Whilst the original request referred generally to the review's "documents or files", the correspondence which followed demonstrates an increasingly clear focus upon the report itself. The Appellant repeatedly referred to "the review/report", "the report" and "a copy of the review". He enquired what had become of the report if it no longer existed and questioned whether it had been transferred elsewhere or destroyed. Taken as a whole, the correspondence reveals a sustained concern with the report itself rather than the entirety of the documentary material associated with the review.[54]The Tribunal also notes that, during the course of the Commissioner's investigation, the Commissioner expressly informed both parties that he understood the Appellant to be seeking only the full and final report. Whilst the Commissioner described this as a narrowing of the request, the Appellant has consistently maintained that he had already made that position clear. Having examined the chronology, the Tribunal considers there to be considerable merit in that argument and accepts that the request had, in substance, become focused upon the report well before the Decision Notice was issued. However, the Tribunal does not consider that this ultimately assists the Appellant. Whether the request is regarded as having narrowed before or during the Commissioner's investigation, the issue which fell to be determined at the time of the Decision Notice remained the same: namely whether the work required to establish whether the final report was held exceeded the statutory limit. The Tribunal is satisfied that it did.The Significance of the Internal Review Outcome
[55]The Significance of the Internal Review Outcome The aspect of the evidence which most obviously troubles the Appellant concerns the Constabulary's statement during the internal review process that it had located the final report following a review of fifteen boxes. The Appellant submits that this statement sits uneasily, if not irreconcilably, with the position later adopted before the Commissioner. He argues that if the final report had already been found, there was no proper basis for the Commissioner later to conclude that extensive searches remained necessary in order to determine whether it existed.[56]The Tribunal accepts that this argument requires careful consideration. Indeed, we regard it as one of the strongest points advanced by the Appellant. It is impossible to read the chronology without recognising that there is an apparent inconsistency between the internal review outcome and the position subsequently adopted before the Commissioner. The Appellant is fully entitled to ask how a document which had previously been described as the final report came later to be regarded as something different.[57]It is, however, important to analyse carefully what occurred during the Commissioner's investigation. The Commissioner did not simply accept a revised assertion from the Constabulary that the document previously identified was not the report sought by the Appellant. Rather, the Commissioner obtained a copy of the document which the Constabulary believed to be the final review report and considered it as part of his investigation. Having done so, the Commissioner concluded that the document did not appear to be the final review report. In the Decision Notice he recorded that the document was undated, unsigned and appeared to be incomplete. He further recorded that it appeared to represent only one area of the review. On discussing the matter with the Commissioner, the Constabulary accepted that assessment and undertook further enquiries.[58]The distinction is important. Had the Commissioner merely accepted a revised assertion from the Constabulary without considering the document itself, the Appellant's criticism would have carried considerably greater force. The evidence before the Tribunal demonstrates, however, that the Commissioner reached his own view following consideration of the document which had been supplied to him. The Tribunal has not been referred to evidence capable of demonstrating that this assessment was irrational or unsupported.[59]The Tribunal accepts that the documentary record does not satisfactorily explain why the document identified during the internal review process came to be described as the "final report". The evidence before us does not permit a confident finding as to whether that description arose through misunderstanding, mistake, assumption or some other cause. The Tribunal therefore does not attempt to resolve that issue. In our judgment, it is unnecessary to do so. The issue before the Tribunal is not why the document came to be described as the final report, but whether the Commissioner was entitled to reach the conclusions contained in the Decision Notice on the basis of the material before him.[60]Accordingly, whilst the Tribunal accepts that the chronology gives rise to understandable concern, we are ultimately satisfied that the Commissioner was entitled to conclude that the document located by the Constabulary did not represent the final report sought by the Appellant. The Tribunal also notes that nothing in this decision prevents the Appellant, should he so choose, from making a request under FOIA in respect of the document which was supplied to the Commissioner and subsequently regarded as something other than the final report sought in these proceedings.The Reliability of the Constabulary's Evidence
[61]The Reliability of the Constabulary's Evidence The Appellant's concerns do not end there. He submits more generally that the Constabulary's handling of the request demonstrates a pattern of inconsistency which should lead the Tribunal to treat its evidence with caution. He points to the progression from "no information held" to the discovery of eighty-three boxes and a report. He argues that this history undermines confidence in the estimates subsequently relied upon by the Commissioner.[62]The Tribunal accepts that the history of the request is unsatisfactory. A public authority which initially states that no information is held and later identifies substantial quantities of relevant material inevitably exposes itself to criticism. The Tribunal also accepts that these developments provide a legitimate basis upon which the Appellant might question the reliability of later evidence.[63]However, the existence of inconsistency in the handling of a request does not automatically mean that every subsequent estimate, explanation or submission is unreliable. The Tribunal's task is not to make a broad assessment of institutional competence. Rather, it is to evaluate the specific evidence relied upon by the Commissioner in support of section 12(2).[64]The Appellant also questions the Constabulary's assertion that the relevant material was contained within eighty-three boxes and submits that the Commissioner should not simply have accepted that figure. The Tribunal accepts that this concern is understandable. It arises directly from the unusual history of the request, during which the Constabulary initially stated that no relevant information was held, subsequently identified a substantial body of material, and later altered its position again regarding the report itself. The Appellant is therefore entitled to submit that later assertions made by the Constabulary should be approached with caution.[65]However, the Tribunal does not consider that the Commissioner's reasoning depended upon unquestioning acceptance of the figure of eighty-three. The Commissioner was concerned with a broader evidential picture. By the time the Decision Notice was issued, the Commissioner proceeded on the basis that searches had taken place, that the Commissioner proceeded on the basis that potentially relevant material existed which required further searching, that a document thought to be the final report had been identified and supplied to the Commissioner, and that the Commissioner had concluded that the document did not appear to be the final report sought by the Appellant. The consequence of that conclusion was that further searching would be required in order to determine whether the final report was held.[66]In those circumstances, the Tribunal does not regard the precise number of boxes as determinative. Even approaching the Constabulary's evidence with the degree of caution urged upon us by the Appellant, the evidence before the Commissioner remained capable of supporting the conclusion that extensive further searches would be required. The Tribunal is therefore not persuaded that the Appellant's challenge to the figure of eighty-three materially undermines the Commissioner's analysis.[67]The Appellant further argues that the Constabulary ought not to benefit from what he characterises as inadequate record management and points to the assertion that the boxes were not indexed. He submits that, if the records were maintained in a manner inconsistent with good practice or with obligations arising elsewhere in the criminal justice system, it would be wrong to permit reliance upon section 12 as a consequence of that failing.[68]The Tribunal accepts that this submission has a degree of force. However, it is not the function of the Tribunal, in an appeal of this nature, to determine how records ought ideally to have been organised, retained or indexed, nor to evaluate the adequacy of a public authority's record-management systems in the abstract. The Tribunal's jurisdiction is confined to the issues arising under FOIA. The question before us is therefore not whether the Constabulary's records could have been maintained more effectively, but whether the Commissioner was entitled to conclude that, given the manner in which the information was in fact held at the time of the request, the work required to establish whether the requested report was held would exceed the statutory limit.[69]The Appellant's submission, however, goes further than a criticism of record-management practices. In substance, he argues that the Constabulary's changing explanations regarding the records are such that the Commissioner should not have accepted its evidence about the scale and nature of the material requiring examination. The Tribunal recognises the force of that concern. As already noted, the chronology is unusual. The Constabulary initially maintained that no relevant information was held before later identifying a substantial quantity of potentially relevant material and subsequently changing its position again regarding the report itself. Those developments plainly provide a reason to scrutinise the Constabulary's evidence with care.[70]Nevertheless, the Tribunal is not persuaded that those concerns require the Commissioner's conclusions to be rejected. The Commissioner did not simply accept the Constabulary's position at face value. The documentary record demonstrates that he sought further information, required the Constabulary to reconsider its position on a number of occasions, obtained the document which the Constabulary believed to be the report sought by the Appellant, and ultimately reached conclusions which were not always aligned with those advanced by the Constabulary. In those circumstances, whilst the Tribunal accepts that the Appellant's concerns are understandable, we are not persuaded that the criticisms of record management or the changing explanations provided by the Constabulary undermine the Commissioner's conclusion that further searching would be required before the existence of the final report could be established.[71]Having reviewed that evidence, the Tribunal is satisfied that it was sufficient to permit the Commissioner reasonably to conclude that substantial further work would be required in order to determine whether the final report existed and was held. The issue is not whether the Constabulary's earlier responses were flawless. Plainly they were not. The issue is whether the Commissioner ultimately had before him evidence capable of supporting the conclusion that section 12(2) was engaged. In our judgment, he did.The Appellant's Challenge to the Search Estimates
[72]The Appellant's Challenge to the Search Estimates The Tribunal turns then to what we regard as the central issue in the appeal.[73]The Commissioner accepted evidence from the Constabulary that the relevant records were held within eighty-three boxes of historical material and that, based upon a sampling exercise, approximately one hour and forty-five minutes would be required to examine each box. On that basis, the Commissioner accepted that the work required to establish whether the final report was held would amount to approximately 145 hours and would therefore exceed the statutory limit by a substantial margin.[74]The Appellant challenges this conclusion vigorously. He argues that a final review report is not comparable to an ordinary document hidden amongst thousands of pages. He submits that a report summarising an extensive review would be likely to be substantial, distinctive and readily identifiable. In his submission, it is unrealistic to suppose that a searcher would need to examine every document within every box in order to locate it. He further points to the fact that Devon and Cornwall Police, when considering related material, produced a markedly different estimate of the time required to search each box.[75]The Tribunal regards those submissions as legitimate and worthy of careful consideration. We do not dismiss them out of hand. Nor do we consider it necessary to endorse every aspect of the Constabulary's estimate in order to determine this appeal.[76]The Tribunal has also considered the Appellant's submission that a final report summarising an extensive review would likely be a substantial and distinctive document, capable of being identified relatively quickly once located within the relevant records. There is some intuitive attraction to that argument. If such a document existed, it might reasonably be thought to possess features distinguishing it from routine correspondence or investigatory material. However, the Tribunal does not consider that it is in a position to make assumptions about how the final report, if it exists, would have appeared within the records held by the Constabulary. The evidence before the Tribunal does not enable reliable findings to be made in that regard. Nor does the Tribunal consider that it can safely proceed on the assumption that the report would necessarily have been immediately recognisable amongst the wider material. Indeed, the fact that the document initially identified by the Constabulary as the final report was subsequently regarded by the Commissioner as something other than the final report sought by the Appellant illustrates the difficulties which can arise when attempting to identify such material within a larger body of records. In those circumstances, the Tribunal is not persuaded that the assumed distinctiveness of the final report materially undermines the Commissioner's assessment of the searches required.[77]The Tribunal has also considered the Appellant's submission that the Constabulary should have been able to reduce the scope of any search by applying logic, chronology or contextual information concerning the review. The Tribunal accepts that this is a legitimate observation and that it is not necessary to assume that every box would have required precisely the same level of examination. However, the Tribunal does not consider that the appeal ultimately turns upon the availability of such searching techniques. Even assuming in the Appellant's favour that some degree of prioritisation or filtering could have been undertaken, the evidence remains that a substantial body of material would still have required examination before the existence of the final report could be established. In those circumstances, the Tribunal is not persuaded that this submission materially undermines the Commissioner's conclusion under section 12(2).[78]The Tribunal accepts that the estimate of one hour and forty-five minutes per box appears generous and may overstate the time in fact required to conduct the searches. We do not consider it necessary, however, to determine what the correct figure ought to have been. The appeal does not ultimately turn on that question. The critical issue is whether the Commissioner was entitled to conclude that the exercise required to determine whether the report was held would exceed the statutory threshold. In the Tribunal's judgment, it would. Even if a materially lower estimate were adopted, the volume of material requiring examination would still result in a search exercise which exceeded the statutory limit by a substantial margin.[79]The Tribunal has likewise considered the Appellant's reliance upon the estimate provided by Devon and Cornwall Police in relation to different records associated with the same underlying subject matter. The Tribunal accepts that the comparison is relied upon by the Appellant as an illustration of why the Constabulary's estimate may be regarded as generous. However, the Tribunal does not consider that it provides a reliable evidential basis upon which to determine what estimate ought properly to have been adopted in this case. The requests were directed to different public authorities, concerning different record holdings, maintained in different circumstances. The Tribunal has not heard evidence enabling a meaningful comparison between the organisation, content or condition of those respective collections of records. Accordingly, whilst the Devon and Cornwall estimate demonstrates that alternative estimates may be possible, it does not establish that the estimate accepted by the Commissioner was unreasonable[80]The difficulty for the Appellant, however, is that even a substantial reduction in the estimate does not materially alter the outcome. The Commissioner accepted the Constabulary's evidence that a large quantity of potentially relevant material remained to be searched and expressly observed that, even if the estimate of one hour and forty-five minutes per box were reduced considerably, the resulting exercise would still exceed the statutory threshold by a substantial margin. The Tribunal agrees with that analysis. Even proceeding on assumptions materially more favourable to the Appellant than those advanced by the Constabulary, we are satisfied that the work required to establish whether the final report was held would still exceed the statutory limit. Put another way, the appeal does not stand or fall on the precise accuracy of the estimate relied upon by the Constabulary. The essential difficulty for the Appellant is that the quantity of material requiring examination is such that the statutory threshold is exceeded even on a significantly more conservative assessment.[81]In reaching that conclusion, the Tribunal wishes to make clear that we are not simply accepting the Constabulary's estimate uncritically. Rather, we have considered the Appellant's criticisms and have evaluated the position on assumptions more favourable to him than those adopted by the Constabulary. Even on that basis, the work required remains substantially in excess of the statutory limit.[82]It follows that the Tribunal does not regard the challenge to the precise estimate as a basis upon which the Decision Notice should be overturned.The Public Interest Arguments
[83]The Public Interest Arguments Throughout his correspondence, complaint and grounds of appeal, the Appellant has stressed what he considers to be the considerable public importance of the report he seeks. He relies upon allegations concerning the conduct of the original investigation, reports of concerns raised during later reviews, and the continuing interest generated by the conviction. He submits that disclosure of the report would promote accountability, transparency and public confidence in the administration of justice.[84]The Tribunal readily accepts that the subject matter of the request is of genuine public interest. Nothing in this decision should be taken as suggesting otherwise. The Tribunal further accepts that the Appellant has articulated rational and intelligible reasons for wishing to obtain the report.[85]However, the existence of a public interest in disclosure does not determine the outcome of an appeal under section 12(2). Parliament has expressly provided that a public authority is not obliged to undertake searches whose cost exceeds the statutory limit. The issue before the Tribunal is therefore not whether disclosure would be desirable, but whether the statutory threshold has been reached.[86]Once section 12(2) is engaged, the strength of the public interest cannot itself disapply the provision. The Tribunal is required to apply the legislation as enacted. The Appellant's public interest arguments therefore form an important part of the factual context but do not alter the legal conclusion which follows from our findings regarding the cost of determining whether the final report is held.Overall Conclusion on the Merits
[87]Overall Conclusion on the Merits Drawing these matters together, the Tribunal accepts that there are aspects of the chronology which legitimately concern the Appellant. We accept that the request had, in substance, become focused upon the final report considerably earlier than the Commissioner formally recorded. We also accept that the Constabulary's handling of the request was marked by inconsistencies which understandably gave rise to scepticism.[88]However, having considered the evidence as a whole, the Tribunal is satisfied that the Commissioner was entitled to conclude that the document initially identified by the Constabulary did not represent the final report sought by the Appellant and that further searches would therefore be required. We are further satisfied that, even on assumptions materially more favourable to the Appellant than those advanced by the Constabulary, the work required to establish whether the final report is held would substantially exceed the statutory limit prescribed by FOIA.[89]The Tribunal also agrees with the Commissioner's analysis that the present case is properly characterised as one falling under section 12(2) rather than section 12(1). The evidence before the Commissioner was not that the Constabulary had located the final report but could not provide it within the cost limit. Rather, the position reached during the investigation was that the Constabulary could not establish whether the final report existed within its holdings without undertaking further extensive searches. The Commissioner was therefore concerned with the cost of determining whether information was held at all, which is the circumstance addressed by section 12(2).[90]For all of those reasons, the Tribunal concludes that the Commissioner was correct to find that section 12(2) FOIA was engaged. That conclusion is reached notwithstanding the Tribunal's acceptance that aspects of the Constabulary's handling of the request were unsatisfactory and notwithstanding the Tribunal's willingness to approach the search estimates on assumptions materially more favourable to the Appellant than those adopted by the Constabulary. Even on that more favourable basis, the Tribunal remains satisfied that the statutory threshold was exceeded and that there is no proper basis upon which the Decision Notice should be disturbed.CONCLUSION
[91]CONCLUSION Standing back and considering the matter in the round, the Tribunal accepts that aspects of the Constabulary's handling of this request were capable of creating confusion and contributing to the Appellant's concerns. The Tribunal further accepts that the chronology required careful scrutiny and that the Commissioner was obliged to satisfy himself independently regarding the nature of the document which had been located and the extent of any further work required. The Tribunal is satisfied that he did so. We are further satisfied that the Commissioner was entitled, on the evidence before him, to conclude that the cost of establishing whether the final report sought by the Appellant was held exceeded the applicable statutory limit.[92]The Tribunal has also considered the Appellant's criticisms both individually and cumulatively. Whilst a number of those criticisms carry some force, particularly when viewed against the chronology of the request and the changing positions adopted by the Constabulary, the Tribunal is not persuaded that their combined effect undermines the Commissioner's conclusion. Even considered together, they do not provide a basis for disturbing the Decision Notice.[93]Accordingly, the Tribunal upholds the Decision Notice dated 16 December 2025 under reference IC-382740-Z4J8 and dismisses the appeal.Decision
[94]Decision The appeal is dismissed. The Decision Notice is upheld. Signed Date: Judge Kiai 15th August 2026