Ilkay Cetin v Information Commissioner

Background to Appeal

1. This Appeal dated 11 June 2026 and made by the Appellant, Ms Ilkay Cetin, arises following a request for information (the “Request”) made by the Appellant to the Ministry of Justice (“the MOJ”) under the Freedom of Information Act (FOIA) on 4 September 2024 in the following terms: “I am writing to request information under the Freedom of Information Act 2000 . My request pertains to the current [Registrar]. Please provide the following information: Confirmation that [named individual], registered with the Solicitors Regulation Authority under number [number redacted], is currently serving as the [Registrar]. The [Registrar’s] salary information: a) The starting salary when the current [Registrar] took up the position b) The current salary of the [Registrar] c) Any salary increases or adjustments since the appointment, including dates and amounts. The [Registrar’s] educational and professional background: a) Educational qualifications, including institutions attended and degrees obtained b) Professional experience prior to appointment as [Registrar], including previous roles, employers, and dates of employment c) Any specific qualifications or experience that were required for the [Registrar] position. Details of the appointment process for the current [Registrar]: a) The date the position was advertised b) The minimum qualifications and experience required, as stated in the job advertisement c) The date of appointment of the current [Registrar]”.

2. The MOJ responded to the request on 23 September 2024 and denied holding any information in scope of the request. Following an internal review requested by the Appellant, the MOJ revised its position on 18 November 2024 to confirm that it did hold some information within the scope of the request which was duly disclosed. The MOJ further provided that the information held in relation to the name and appointment date of the Registrar was exempt under section 21 of FOIA as it was information which was reasonably accessible to the Appellant. The MOJ withheld information relating to the Registrar’s salary, educational qualifications and professional experience pursuant to section 40(2) FOIA. The Commissioner’s Investigation

3. During the course of the Information Commissioner’s (‘IC’) investigation, the MOJ issued a further response to the complainant in which it provided some relevant information, namely the generic starting salary of the role and the qualifications and/or experience that are required for a Registrar. However, it explained that it does not hold any information relating to the specified Registrar's educational and professional background.

4. O n 19 November 2024, the Appellant made a Section 50 FOIA complaint to the IC in relation to MOJ’s application of Section 40(2) FOIA.

5. On 27 November 2024, the Appellant provided submissions to the IC in relation to MOJ’s application of Section 40(2) FOIA.

6. On 10 March 2025, the IC began his investigation into the Appellant’s Section 50 FOIA complaint. The IC wrote to the MOJ and requested a copy of the withheld information, along with its submissions regarding the application of Section 40(2) FOIA.

7. On 2 April 2025, the MOJ responded to the IC. It provided the withheld information relation to the Registrar’s salary, along with submissions regarding the application of Section 40(2) FOIA to withhold that information. However, in relation to the Registrar’s educational qualifications and professional experience, it stated: “A search via HR has confirmed no data is held with their department and following a more detailed search at the Upper Tribunal, any data that may have been held relating to Ms Daly’s educational qualifications and professional experience, would have been destroyed in line with their two-year retention period” and “We have written to the requester confirming that this information is not held…”

8. On the same day, the MOJ wrote to the Appellant and stated: “As part of our further review, we can confirm that the MoJ does not process any information relating to the Registrar's educational and professional background. This is because any information would have been contained within her application for the role made in 2017, and which has been destroyed in line with the required two years retention. However, as the IR response advised, the EAT Registrar role is a Grade 7 lawyer role and the generic starting salary of a Registrar and the qualifications and/or experience that are required for a Registrar position would be similar to this recent Upper Tribunal Registrar job description found here: 91447 - Registrar/ Lawyer, Upper Tribunal (Administrative Appeals Chamber) – MoJ.”

9. On 3 April 2025, the Appellant stated to the IC that they were unhappy with the MOJ’s revised response that it did not hold information relating to the Registrar’s educational qualifications and professional experience. The Appellant provided to IC submissions under seven sub-headings stating why they believe: “…the MOJ's latest response represents an attempt to avoid disclosure of information they previously acknowledged holding, possibly because they anticipate the ICO would order disclosure.” The Appellant requested that the IC thoroughly investigate this matter, particularly examining whether the MOJ genuinely does not hold this information or is attempting to avoid its obligations under FOIA.

10. On 14 April 2025, the IC wrote to the MOJ and stated: “ The complainant has contacted the ICO regarding the MoJ's revised response. They dispute that the MoJ does not hold the requested information relating to the Employment Appeal Tribunal Registrar's educational qualifications and professional experience. The arguments they made to the ICO are similar to those they made on 'whatdotheyknow’ when they contacted the MoJ on 3 April. Our investigation will now look at whether, on the balance of probabilities, the MoJ holds the requested information. You have told the complainant that any data that may have been held would have been destroyed in line with a two year retention policy. Grateful if you could send me a copy of, or link to, that policy. Please also confirm the nature of the searches which resulted in your 'do not hold' position. Please respond by 30 April 2025”.

11. On 16 April 2025, the MOJ responded to the IC. The MOJ provided the IC with an internal document entitled ‘Information Wise — What to Keep, The MoJ’s Retention Policy and Guidance’ and referred the IC to information relating to the type of record described as ‘Recruitment – applications, sifting, supporting documents (paper originals)’. The Policy provides that this type of document should be retained by the ‘recruiting manager’ for ‘two years from date decision made’. In relation to nature of the searches, the MOJ stated: “If the information was held it would be held by HR and/or London Tribunals, Upper Tribunals & Employment Appeals Tribunal business areas, as it relates to a role in the London Tribunals, Upper Tribunals & EAT business area. The search terms used to carry out the search would have included: - Nicola Daly (including National insurance number and/or employee number) - Business area (where the role was required) - The title of the role. A search via HR confirmed that no data is held within their department and following a more detailed search at the London Tribunals, Upper Tribunals & EAT, any data that may have been held relating to Ms Daly’s educational qualifications and professional experience, would have been destroyed in line with their two-year retention period. We have therefore only been able to supply the withheld data relating to salary” The Commissioner’s Decision

12. In a Decision Notice (the “Decision Notice”) dated 14 May 2025, the IC held that: “Based on the evidence provided to him, the Commissioner is satisfied that, on the balance of probabilities, the MoJ does not hold recorded information falling within the scope of the part of the request relating to educational and professional qualifications. He is therefore satisfied that the MoJ has complied with the requirements of section 1 of FOIA in this case.” Appeal and Responses

13. This appeal relates to the application of the Freedom of Information Act 2000 .

14. The Appellant appealed the Decision Notice on the following grounds: a. The IC’s decision is incorrect because the IC accepted implausible claims from the MOJ without adequately investigating contradictions made by the MOJ including an internal review in November 2024 which stated that the MOJ held information relating to the Registrar’s educational qualifications and professional experience which was contradictory to the MOJ’s response in April 2025 which provided that the Registrar’s application of 2017 has been destroyed. b. The MOJ’s record management policy is, in the appellant’s view, implausible in that the Appellant does not accept that all qualification records for a current employee would be destroyed as, in her view, HR practices require records to be kept. c. The IC failed to consider personnel files, professional records, reference checks, performance reviews, security clearance documentation and payroll records. d. The IC has failed to properly analyse the public interest in quasi-judicial roles. e. In the Appellant’s view there has been a conflict of interest as the Registrar subject to the request for information was involved in responding to the Appellant’s FOI request. f. The IC accepted the claims of destruction of the records on face value without investigation. g. The IC’s decision undermines judicial transparency and sets dangerous precedent regarding destruction of records for current employees. It is in the public interest and most important that the EA provides the information that proves that the scheme is (or is not) compliant.

15. The IC’s response to the appeal maintains that the Decision Notice is correct and provides that MOJ’s searches for the requested information in this request can be described as ‘sufficiently rigorous’. Although the MOJ initially erroneously stated it held the requested information, it is clear that it has undertaken sufficiently rigorous searches to come to the conclusion that it does not hold the information relating to the Registrar’s educational qualifications and professional experience.

16. In response to the Appellant’s Grounds of Appeal, the IC accepts the that the Appellant was provided with contradictory information by the MOJ in relation to the Registrar’s educational qualifications and professional experience. Whilst the MOJ did not explain to the IC why it initially stated to the Appellant that it holds this information, when in fact it did not, the IC is satisfied that this is down due to a genuine error rather than an attempt to mislead the IC or withhold information in its possession.

17. The IC submits that the MOJ provided its retention policy and guidance document to the IC and confirmed that the Registrar’s educational qualifications and professional experience would have been destroyed after two years in line with this policy.

18. The IC accepts that the MOJ has made searches in the relevant places and as per Clyne , the IC submits that he was entitled to accept the MOJ’s submissions at face value. Without any evidence from the Appellant to contradict the MOJ’s submissions, the IC remains satisfied that the MOJ has identified all locations where the Registrar’s educational qualifications and professional experience may have been held and searched those locations accordingly.

19. The IC submits that there is no public interest test that can be undertaken in relation to the Registrar’s educational qualifications and professional experience, given that MOJ do not hold the requested information.

20. The IC is unaware of any evidence, nor has the Appellant provided any evidence in their appeal, that suggests that the Registrar has been directly involved in responding with the request.

21. The IC disagrees with the Appellant’s allegation that his decision ‘undermines judicial transparency and sets dangerous precedent allowing destruction claims for current employees’. Issue

22. The issue for the Tribunal to determine is whether the IC was correct in holding, on the balance of probabilities, that the MOJ did not hold any relevant information within the scope of the request, save for that which was disclosed, at the time that the request was made. Evidence

23. The Tribunal was provided with and took account of a 166-page bundle which comprises of: a) The IC’s Decision Notice, b) The Appellant’s Notice of Appeal; c) The IC’s Response to the Appeal; d) The original request for information; e) The MOJ’s responses; f) Documents relied on by the Appellant in relation to his request; g) Correspondence between the IC and the Appellant; h) Correspondence between the IC and the MOJ including the MOJ Retention Policy and Guidance;

24. In oral submissions, the Appellant stated that the contradiction in the MOJ’s response was not acceptable to her and that the notion that the MOJ did not hold the information was implausible. She believes that the IC ought to have investigated further rather than taking the MOJ’s response at face value. However, the Appellent did not offer any evidence as to why she considers that the information is held by the MOJ, only stating that it ought to be held. Applicable Law

25. The powers of the Tribunal in determining this appeal are set out in section 58 Freedom of Information Act (“FOIA”), as follows: “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. On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.”

26. Under section 58 FOIA the Tribunal conducts a full merits appeal (de novo) of the IC’s handling of the decision under appeal. Section 1(1) FOIA provides individuals with a general right of access to information held by public authorities. It provides: “ Any person making a request for information to a public authority is entitled— (a) to be informed in writing by the public authority whether it hold s information of the description specified in the request, and (b) if that is the case, to have that information communicated to him. ”.

27. In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them, subject to some exemptions and qualifications under FOIA which do not apply in this case.

28. Whether a public authority holds material is a question of fact to be determined on the balance of probabilities, see the case of Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072; 31 August 2007) which has subsequently been followed and approved by the Upper Tribunal. The type of fact that will be considered in determining whether the material is held may include 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. As noted in that case. “There can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority's records. This is particularly the case with a large national organisation like the Environment Agency, whose records are inevitably spread across a number of departments in different locations. The Environment Agency properly conceded that it could not be certain that it holds no more information. However, it argued (and was supported in the argument by the Information Commissioner) that the test to be applied was not certainty but the balance of probabilities. This is the normal standard of proof and clearly applies to Appeals before this Tribunal in which the Information Commissioner's findings of fact are reviewed. 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.”

29. Further relevant legal authorities such as Preston -v- the Information Commissioner and The Chief Constable of Yorkshire Police [2022] UKUT 344 ACC, Jeremy Clyne v IC and London Borough of Lambeth EA/2011/0190 and Oates v Information Commissioner and Architects Registration Board EA/2011/0138 provide principles for considering whether information is held including:- a) The question is to be decided on the balance of probabilities. b) There is never a guarantee that public authorities will be able to retrieve every piece of information that they hold within the scope of a request. c) The issue is not what should have been recorded and retained but what was recorded and retained. d) The IC is entitled to accept the word of the public authority and not investigate further "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." Discussion and Conclusions

30. In accordance with section 58 FOIA, the issue for the Tribunal to decide upon is whether the IC’s Decision Notice was in accordance with the law and whether the IC was correct in finding that it was more likely than not that the MOJ did not hold any further relevant information within the scope of the request at the time that the request was made.

31. Under section 58(2) FOIA, the Tribunal can review any finding of fact upon which the Decision Notice was based, consider all of the evidence before it and reach its own decision.

32. The Tribunal has considered all of the bundle documents and the written and oral submissions of the parties. Should a piece of evidence not be mentioned within this decision, it should not be interpreted that the Tribunal has not considered it.

33. The only issue for the Tribunal to consider in this case is whether, on the balance of probabilities, the requested information was held by the MOJ at the time of the Appellant’s request and accordingly, whether the IC’s Decision Notice was incorrect in finding that it was more likely than not that the MOJ did not hold any further relevant information within the scope of the request at the time that the request was made. A ssessing the scope of the IC’s investigation, the conduct of the IC or the Appellant’s underlying issues or concerns which gave rise to the request is not within the jurisdiction of this Tribunal.

34. Having considered the evidence of the parties and all of the circumstances, the Tribunal accepts that upon receipt of the Appellant’s request the MOJ erroneously provided information to state that the information requested was held. However, the Tribunal further accepts that this is likely to have been due to human error and that the MOJ conducted an extensive search for the information once the IC investigation was launched after which some information was located and promptly disclosed to the Appellant. It is the Tribunal’s view that the MOJ has been cooperative and compliant in dealing with the Appellant’s request for information and, moreover, the IC’s investigation. The MOJ provided detailed responses to the IC in relation to the method and scope of its conducted searches and provided its document retention policy in relation to the requested documents.

35. Indeed, the MOJ provided the IC with a detailed account of the specific searches conducted by the MOJ in handling the Appellant’s request and in the course of the IC’s investigation. As mentioned above, the MOJ provided details of their retention policy and the Tribunal accepts that pursuant to this policy, the information relating to the Registrar’s education and professional experience has been destroyed. The MOJ has responded to large parts of the Appellant’s original request where it has been able to.

36. Despite the erroneous initial response, in the Tribunal’s view the MOJ has been otherwise cooperative in its handling of the request and in response to the IC’s investigation. It has carried out effective searches, which were sufficiently rigorous, to locate any information relevant to the Appellant’s request.

37. The Tribunal has no reason to believe that, if the MOJ held the requested information relating to the Registrar’s educational qualifications and professional experience, it would not have disclosed it to the Appellant. The Tribunal is satisfied that, on the balance of probabilities, the information was not held at the time of the request. This is the correct civil standard of proof, it is not appropriate to leave ‘no stone unturned’ in searching for information, but to carry out a diligent, competent and appropriate search in all the circumstances. The Tribunal considers that the MOJ has conducted such a search.

38. It is important to note that the Tribunal is concerned with the information which the MOJ, on the balance of probabilities, held at the time of the request, and not the information which it ought to have held, and whilst the Tribunal understands the Appellant’s arguments as to why she considers that the MOJ ought to hold the information, this is not indicative of whether the MOJ did in fact hold the information. Accordingly, the Tribunal finds that the IC was correct in finding that it was more likely than not that the MOJ did not hold any further relevant information within the scope of the request at the time that the request was made.

39. The appeal is dismissed. Signed: Judge Peri Mornington Date: 14 January 2026