Tribunal allows appeal in Harron v Information Commissioner over Rotherham Council's flawed FOI searches

The First-tier Tribunal (General Regulatory Chamber) has allowed an appeal against the Information Commissioner's decision that Rotherham Metropolitan Borough Council held no further information within the scope of a Freedom of Information Act 2000 request, after the Council admitted its searches had been inadequate and its evidence to the tribunal inaccurate.

The judgement, handed down on 20 July 2026 in Liam Harron v The Information Commissioner & Anor [2026] UKFTT 1049 (GRC), marks the latest stage in a protracted dispute dating back to January 2022, when Harron requested copies of communications between the Council's then Leader, Chris Read, and its Chief Executive, Sharon Kemp, concerning statements to the media linked to an email sent on 23 August 2016.

The Council initially said it held no relevant information, having searched for emails containing both individuals' addresses within a narrow date range. The Commissioner found that response inadequate in November 2022, prompting a fresh search. The Council then refused the request as vexatious under section 14, a decision the Commissioner upheld but which the First-tier Tribunal later overturned in June 2024, directing the Council to issue a new response without reliance on section 14.

That new response, issued in July 2024, again concluded that no information was held, despite an expanded search of email systems, network folders and paper records. During the Commissioner's subsequent investigation, an email dated 2 September 2016, already disclosed to Harron under a separate request, was identified as falling within scope. The Council disclosed it in January 2025, albeit outside the statutory time limit, resulting in a finding that it had breached section 10(1) of FOIA. The Commissioner nonetheless concluded, in a decision notice dated 28 January 2025, that no further information was held.

Harron appealed, and the Council, represented by counsel, initially defended its search methodology as thorough, citing additional keyword searches conducted ahead of the hearing. However, following an order from the tribunal requiring further explanation of how the 2016 email had been located despite the deletion of the sender's account in 2018, the Council's position shifted markedly. In submissions dated 12 June 2026, the Council acknowledged that its original searches had been limited by an error of interpretation, having in fact searched only for direct communications between the two named addresses rather than the broader parameters described in its own response and internal review decision.

The Council further disclosed that later searches, carried out in August 2025, had identified additional material, including a series of email exchanges between Councillor Read and local residents concerning the same underlying matter. The Council argued these fell outside the scope of FOIA as correspondence held by an elected member in that capacity, rather than by the Council itself, under section 3(2) of the Act. The Commissioner did not accept the Council's proposed resolution and maintained that the appeal should be dismissed, while Harron argued the tribunal could not reach a safe conclusion without sight of the disputed emails.

The tribunal, chaired by Judge Sophie Buckley, found that the evidential position before it had been fundamentally undermined by the Council's late admissions and that neither the question of adequacy of search nor the status of the residents' correspondence had been properly addressed in evidence. Rather than compelling disclosure of the material directly to the tribunal, which risked further delay and a resumed hearing, the panel determined that requiring a fresh response from the Council was the more appropriate remedy, restoring Harron's right to a new complaint to the Commissioner should he remain dissatisfied.

The Council must issue its fresh response within 35 calendar days of notification.