The Home Office was not entitled to neither confirm nor deny whether it held audit records for the Envigo RMS Belton animal research facility, the First-tier Tribunal has ruled, finding that evidence of a hostile environment around animal research did not establish the causal link to endangerment that section 38(2) of the Freedom of Information Act 2000 requires.
Judge Brian Kennedy KC, sitting with specialist members Susan Wolf and Emma Yates in Deborah Cox v Information Commissioner and Home Office [2026] UKFTT 1306 (GRC), allowed the appeal in part, overturning the Commissioner's decision notice IC-381512-N0T6 of 27 January 2026 on that point while upholding the Home Office's position that it held no recorded information explaining an apparent shortfall in audits.
Cox, who has a longstanding interest in animal welfare, made her request on 4 March 2025 after comparing published Home Office guidance on the regulation of research establishments under the Animals (Scientific Procedures) Act 1986 with published inspection data.
The guidance states that every establishment receives a full system audit at least every three years, or annually if it holds special species, but the published figures suggested relatively few such audits had taken place. She asked why the Home Office had broken its own regulations, and separately asked what audits had been carried out at the Envigo Belton site between 2022 and 2024, with redacted copies of the audit reports.
The Home Office, acting through its Animals in Science Regulation Unit, responded on 31 March 2025 that it held no recorded information answering the first question, since it did not accept that any breach had occurred and could not hold an explanation for a breach it did not recognise.
On the Envigo request it refused to confirm or deny whether any information was held, relying on section 38(2) on the basis that confirmation or denial would, or would be likely to, endanger the physical or mental health or safety of individuals associated with animal research establishments. An internal review on 30 April 2025 upheld both positions, and the Commissioner did likewise.
Section 38(2) removes the duty to confirm or deny where compliance with section 1(1)(a) would, or would be likely to, have the endangering effect described in section 38(1). It is a qualified exemption subject to the public interest test.
The tribunal, which heard oral evidence from a Home Office witness, Ms Jenkins, at a hearing on 26 August 2026, accepted that animal research remains controversial, generates protest and hostility, and that people connected with establishments may face harassment or intimidation. Those concerns were plainly capable of engaging section 38 in an appropriate case. But the exemption required more than a controversial background or a general risk of harm. The statutory question was whether the specific act of confirming or denying the existence of the requested information would itself create, contribute to or materially increase a real and significant risk to an identifiable class of individuals.
The panel asked three questions: what additional information a confirmation or denial would convey, what realistic inference could be drawn from it, and how that would create or materially increase the asserted risk. It took into account material already in the public domain, including Envigo's Companies House filings describing its activities, its Concordat on Openness material and published job descriptions.
Against that background, the Home Office's evidence established a generalised risk environment but did not show with sufficient specificity how confirming or denying whether audit records existed would exacerbate it. The causal connection required by section 38(2) had not been made out and the exemption was not engaged.
Having reached that conclusion, the tribunal did not need to decide the public interest, but recorded that had the exemption been engaged it would have regarded the balance as finely poised, with considerable weight on protecting individuals and allowing the regulatory regime to operate, set against a significant interest in transparency about the administration of the ASPA framework and in ensuring the NCND mechanism is used only where the statutory requirements are met. The weakness of the evidential link between the confirmation sought and the harm asserted would have been a material factor against maintaining the exemption.
On the audit shortfall question the tribunal dismissed the appeal. It understood why Cox sought an explanation for the apparent discrepancy, but FOIA confers a right to recorded information and does not require an authority to construct explanations or answer questions. Information about inspection and audit activity was held, but material from which an explanation might be inferred was not the same as a recorded explanation, and on the balance of probabilities none existed.
The tribunal substituted its own decision under section 58(1), requiring the Home Office to issue a fresh response to the Envigo request within 35 days of the decision becoming final without reliance on section 38(2). It made no finding on whether the information is in fact held or whether any other exemption might apply.
