Armstrong v Information Commissioner: Tribunal upholds section 21 finding on 101 call recordings

The First-tier Tribunal (General Regulatory Chamber) has dismissed an appeal challenging the Information Commissioner's handling of a freedom of information request concerning the recording of 101 calls by Humberside Police, in a judgement that clarifies the limits of the Commissioner's remedial powers where a public authority has misconstrued the scope of a request.

In Mark Armstrong v The Information Commissioner [2026] UKFTT 1011 (GRC), considered on the papers on 17 June 2026, a panel comprising Judge Cragg KC, Anne Chafer and Suzanne Cosgrave upheld Decision Notice IC-355066-V8Q0 of 29 October 2025 in its entirety. The judgement was handed down on 9 July 2026.

Background

The appellant had asked Humberside Police on 27 November 2024 for "all information" held in relation to the tape recording of 101 calls from members of the public, clarifying that this should encompass the enabling legislation, retention and deletion arrangements, force policies and procedures, and confirmation of whether all incoming calls are recorded.

The force refused the first three limbs under section 21 of the Freedom of Information Act 2000 on the basis that the material was reasonably accessible by other means, and confirmed that 101 calls are recorded. That position was upheld on internal review. During the Commissioner's investigation the force issued a revised response, maintaining section 21 for the first two limbs and stating that no information was held in respect of force policy.

The Commissioner's Decision Notice took a mixed view. Section 21 was properly engaged in respect of the legislative basis for recording, but not in respect of retention and deletion, where the links supplied were deficient and relevant material either unavailable or insufficiently identified. More significantly, the Commissioner found that the force had unreasonably restricted the scope of the request by treating the four illustrative categories as exhaustive. Searches conducted on an artificially narrow footing could not establish what was held, and the Commissioner accordingly found a breach of section 1(1)(a), ordering fresh searches and a fresh response.

The appeal

The appellant's case was, in substance, that the Commissioner had not gone far enough. He contended that section 21 could not be engaged where the original response contained a defective link and where the privacy notice relied upon identified no specific statutory power authorising call recording. He further argued that the remedy was inadequate, submitting that the Commissioner ought to have prescribed the categories of material to be searched, including technical documentation, internal communications, training materials and maintenance records. A procedural ground under Article 6 ECHR alleged reliance on undisclosed "closed material".

The Tribunal's reasoning

The Article 6 ground fell away on the facts. No application for closed material had been made or granted, no closed file was before the panel, and the appeal was determined entirely on open material.

On section 21, the Tribunal held that the provision is concerned with whether information is reasonably accessible, not whether an authority has provided a flawless signpost at the first attempt. The defective link was a matter of good administrative practice rather than statutory compliance. The panel rejected the premise that a discrete bespoke statutory power must exist: call recording is an operational aspect of the discharge of statutory policing functions and forms part of the processing of personal data for law enforcement purposes. Where the legal basis is distributed across a framework of statutes and principles, a response directing the applicant to that framework suffices.

As to remedy, the Tribunal found no error of law. The Commissioner had identified the defect, rejected the searches conducted on the misconstrued scope, and required correction. The statutory scheme does not oblige him to supervise the minutiae of an authority's internal search processes, and FOIA contemplates an iterative process in which a further inadequate response may be pursued through the same mechanisms.

Having upheld the Commissioner's decision, the Tribunal noted that it had no power to issue a binding order specifying the nature and extent of the further searches Humberside Police must undertake. What steps the force has taken since the Decision Notice remains unknown to the panel.