Penelope Ballinger v The Information Commissioner & Anor

Decision:

1. The appeal is allowed.

2. The Decision Notice dated 15 August 2025 (ref. IC362332F7Y9) is set aside.

3. The Tribunal substitutes its own decision and directions as set out below. Introduction:

1. This is an appeal under section 57 of the Freedom of Information Act 2000 (“FOIA”) against a Decision Notice (“DN”) issued by the Information Commissioner on 15 August 2025, which upheld West London NHS Trust’s reliance on section 12(1) FOIA and found compliance with section 16 FOIA.

2. After the DN issued, new material emerged from the Trust in response to a separate but closely related FOIA request. That material called into question the factual premises on which the DN had proceeded. The Commissioner, recognising the significance of these later disclosures, sought and obtained the joinder of the Trust as Second Respondent so that his position could be reconsidered if necessary. Background:

3. On 20 November 2024 the Appellant requested the total number of nurses and midwives referred by West London NHS Trust (“the Trust”) to the Nursing and Midwifery Council (“NMC”) for fitness to practise concerns during 2019–2023. The request distinguished between nurses and midwives.

4. On 17 December 2024 the Trust stated that it did not hold the information and, alternatively, that any such information would be exempt under section 21 FOIA as reasonably accessible elsewhere. On internal review (14 February 2025), the Trust maintained reliance on section 21 and added section 12(1), asserting that locating and retrieving the information would exceed the statutory cost limit.

5. The Appellant complained to the Commissioner, submitting that the Trust must necessarily know how many NMC referrals it had made given the senior oversight inherent in the referral process, and that sections 12 and 21 had been wrongly relied upon.

6. In the Commissioner’s investigation the Trust said there was no central record of NMC referrals and that identifying relevant cases would require manual review of 5,755 personnel files or 755 employee ‑ relations cases recorded on a spreadsheet that did not identify job roles or NMC ‑ referral outcomes. A limited sampling exercise suggested an estimated search time of approximately 50 hours, and the Commissioner accepted this evidence, upholding section 12(1) and the adequacy of section 16 advice and assistance.

7. After the DN, the Trust disclosed, (via a separate FOI request (FOI/2025/338), the existence of a summary spreadsheet/log in the Chief Nurse’s Office containing 25 active and closed NMC cases covering 2019–2024 for oversight purposes. This disclosure was inconsistent with the earlier account provided during the Commissioner’s investigation. The Parties’ Position:

8. The Appellant submits that the later ‑ disclosed spreadsheet shows the Trust’s earlier statements were inaccurate; that section 12 could not properly have been engaged; and that section 21 was inapplicable because the NMC does not publish employer ‑ specific referral ‑ origin data and that a FoI request would be required with no guarantee of success.

9. In its Rule 23 response the Commissioner accepted that the later Trust disclosures raised questions requiring clarification, including the nature and completeness of the spreadsheet and whether it represented a central record from which the requested information could reasonably be extracted; the Trust was joined to address these matters.

10. The Trust filed a late and incomplete response and did not provide the requested clarification, adopting inconsistent positions, asserting at points that the spreadsheet covered “all active/closed cases,” at others that it was “not a referral spreadsheet,” while accepting that all entries concerned NMC matters relating to Trust employees. Issues:

11. Whether the DN was based on an accurate factual premise as to what the Trust held at the time of the request.

12. Whether section 12(1) FOIA was correctly relied upon.

13. Whether section 21 FOIA was correctly applied;

14. Whether the Trust complied with section 16 FOIA; and

15. Whether, in light of later disclosures, the Tribunal should set aside the DN and substitute its own decision. Findings of Fact:

16. A centralised oversight spreadsheet/log exists in the Chief Nurse’s Office recording 25 NMC fitness to practise cases concerning nurses over the relevant period - 2019–2024.

17. The Trust has confirmed that it does not employ midwives; the relevant cohort for the request is nurses.

18. The spreadsheet itself does not state for each entry whether the referral to the NMC originated from the Trust or from elsewhere. Determining the origin would entail checking no more than the 25 personnel files corresponding to the spreadsheet entries.

19. The Trust’s evidence to the Commissioner that there was no central record and that compliance would require searches across 5,755 personnel files or 755 employee ‑ relations cases was incorrect in light of the spreadsheet subsequently disclosed.

20. Reviewing the maximum of 25 files to confirm whether each NMC referral was made by the Trust would fall well within the applicable cost limit for section 12(1). Analysis: A. Section 12 (Cost of Compliance)

21. Section 12(1) permits refusal where the cost of compliance exceeds the appropriate limit. On the true facts now known, the existence of a central oversight spreadsheet reduces the search universe to no more than 25 files, a task that does not approach the statutory limit. The Trust’s earlier reliance on extensive manual review of thousands of files is incompatible with the later ‑ disclosed record. The Tribunal find Section 12(1) is not engaged. B. Section 21 (Reasonably Accessible by Other Means)

22. Although the Decision Notice did not go on to determine Section 21 because the Commissioner considered that Section 12 applied, the Tribunal finds that Section 21 is not engaged. The Trust had signposted the requester to the NMC, but the evidence shows that employer specific referral data is not available from the NMC’s public website and is not readily searchable. Accessing such information would require a fresh FOIA request to the NMC, which is not sufficient to make it reasonably accessible for the purposes of Section 21. C. Section 16 (Duty to Advise and Assist)

23. The Trust’s advice to contact the NMC was not reasonably helpful for the above reasons. Further, the Trust did not suggest narrowing the scope or offering an aggregated figure notwithstanding its central oversight record. Section 16 was not complied with. D. Accuracy of the DN and Appropriate Disposal

24. The DN proceeded on the premise that there was no central record and that compliance would exceed the cost limit. The later disclosure of the Chief Nurse’s spreadsheet demonstrates that the DN was issued on an incomplete and inaccurate factual basis. The DN cannot safely stand and must be set aside. It is appropriate to substitute a decision requiring a fresh response and specific disclosure to resolve the request proportionately. Conclusion:

25. On the correct facts, section 12 does not apply; section 21 is not engaged; and section 16 was not met. The appeal succeeds and the DN is set aside. A substituted decision and directions are necessary to bring the matter to a lawful and proportionate conclusion. Substituted Decision and Directions:

26. The Decision Notice dated 15 August 2025 (IC362332F7Y9) is set aside.

27. The matter is remitted to West London NHS Trust to issue a fresh response to the Appellant’s request dated 20 November 2024 in accordance with FOIA.

28. The Trust must determine, by reference to the 25 cases recorded on the Chief Nurse’s spreadsheet (2019–2024) and any necessary verification by reviewing the corresponding personnel files (limited to those cases), the total number of referrals made by the Trust to the NMC during 2019–2023.

29. This substituted decision does not require the Trust to determine referral origin beyond the cases identified in the central spreadsheet unless further evidence demonstrates additional NMC matters not appearing within that record

30. The Trust must provide to the Appellant, within 35 calendar days of this decision , the single aggregate figure for 2019–2023 (no annual breakdown required). The response shall concern nurses only; the Trust having confirmed that it does not employ midwives.

31. For the avoidance of doubt, compliance with these directions does not engage section 12(1) on the facts established, and section 21 FOIA cannot be relied upon for the reasons given above. Postscript:

32. Nothing in this decision prevents the Trust from providing, if it so chooses a further breakdown by year; however, the Tribunal does not require such granularity in order to dispose of the appeal, and the substituted decision is confined to the single aggregate total for 2019–2023. Order • Appeal allowed. • Decision Notice set aside. • Substituted decision and directions as at §§ 26 -32 above.