The First-tier Tribunal has allowed an appeal against an ICO decision that found Westminster City Council held no further information about cladding materials on a residential building, ruling that neither the council's searches nor the Commissioner's acceptance of them met the required standard.
In Peter Marshall v Information Commissioner [2026] UKFTT 00948 (GRC), decided on the papers on 24 June 2026, the Tribunal found multiple errors in the ICO's decision notice, including the fundamental error of issuing it under FOIA rather than the Environmental Information Regulations 2004, which the Tribunal found plainly applied to the request.
The appellant is a resident of a Westminster City Council building on which external cladding was installed as part of an estate-wide regeneration programme in the late 1990s. Following a gas leak in April 2024 and subsequent remedial works requiring partial removal of the cladding, during which the appellant says they were exposed to significant debris and fine dust particles, the appellant submitted an EIR request to the council in May 2024 for full details of the nature and content of the materials in each layer of the cladding, together with supporting documentary evidence.
The council responded in July 2024 under the EIRs but maintained that the building did not appear to have any cladding panels and that it held no External Wall Survey (EWS1). The appellant immediately disputed this, asserting that cladding had been installed as part of the estate regeneration scheme and that the council either held the relevant records in-house or they were held on its behalf by the project architect Stanford Eatwell.
The council's internal review, issued some three months after it was requested, upheld its original position. The ICO, following investigation, concluded on the balance of probabilities that the council held no further relevant information and issued a decision notice but did so under FOIA rather than the EIRs.
FOIA or EIRs?
The Tribunal's first finding was that the Commissioner had applied the wrong statutory regime. Information about cladding materials falls within the definition of environmental information in regulation 2(1) of the EIRs: cladding is a measure typically used for energy efficiency and carbon reduction purposes, and the request explicitly referred to debris and dust particles released during the removal works.
The Tribunal found the requested information related to both factors such as waste and releases affecting elements of the environment, and to measures designed to protect those elements. The Commissioner did not address why he had departed from the council's own EIR treatment of the request and the Tribunal found this constituted an error of law in the decision notice.
Adequacy of searches
The more substantive finding concerned the adequacy of the council's searches and the Commissioner's acceptance of them. The balance of probabilities test applicable to whether a public authority holds information requires the Commissioner - and on appeal the Tribunal - to assess whether the searches conducted were adequate to justify a conclusion that no further information is held.
The council had stated that it searched Microsoft SharePoint, its "data platform", using specific search terms, and that this "would have established all data available on this block and key information pertaining to the request". The Tribunal found this explanation inadequate on several grounds.
SharePoint, the Tribunal noted, was first introduced in 2001, after the cladding installation the appellant described. The council provided no explanation as to whether records predating the platform's introduction had been migrated to it, leaving open the possibility that relevant records from the late 1990s regeneration scheme were held elsewhere.
The council also made no reference to searches of emails, Word documents or hard copy files. No explanation was given of what other search terms, if any, had been used beyond those described, what the council meant by "key information" as distinct from all information within the scope of the request, or why enquiries had been limited to teams within the Housing and Asset Strategy functions rather than extending to other departments that might hold relevant material.
The Tribunal also noted that the appellant had specifically and consistently raised the possibility that records were held by Stanford Eatwell, the project architect, and that neither the council nor the Commissioner had addressed this point. Additionally, the council had stated in the course of the investigation that an assessment of the building's roof had been made "purely via a visual survey", a statement which the Tribunal observed necessarily implied that a record existed to that effect, yet no explanation was given as to whether such a record was held or had been searched.
The Tribunal concluded: "the Commissioner should not have accepted the council's assertion that the searches it stated had been made 'would have established all data available on this block and key information pertaining to the request made'."
Procedural breaches
The Tribunal also formally recorded two procedural breaches. The request was dated 23 May 2024; the council did not respond until 16 July 2024, breaching the 20-working-day deadline in regulation 14(2) of the EIRs for issuing a refusal notice. The appellant's internal review request in July 2024 did not receive a response until 21 October 2024, well in excess of the 40-working-day limit under regulation 11(4). No remedial steps were required in respect of either breach.
The Tribunal substituted its own decision notice requiring the council to issue a fresh response within 35 days, specifying what further searches were conducted - including the systems searched, the keywords used, and the enquiries made of staff and departments - and either disclosing any further information held within scope or citing applicable EIR exemptions. The fresh response will carry a renewed right of complaint to the ICO.
