Veronica Neefjes v Information Commissioner

The proceedings were held by video (CVP). The Appellant and the Tribunal joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.

This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 29 January 2025 (IC-324443-Q6L7, the “Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns information about complaints where the complainant alleged adverse treatment due to whistleblowing activity, requested from the Nursing and Midwifery Council (the “NMC”).

On 7 April 2024, the Appellant wrote to the NMC and requested the following information (the “Request”):

“I would like an answer to the following questions under the Freedom of Information Act 2000.

The NMC responded on 2 May 2024 and refused to provide the requested information, relying on section 12 FOIA (cost of compliance). The NMC explained that they do not have specific data or data points around “alleged adverse treatment of any kind due to whistleblowing activity”, or when whistleblowing is directly referenced in any fitness to practice concern or case. They would need to manually review concerns and cases for the period in question, which would take more than 18 hours to provide.

The Appellant requested an internal review on 25 May 2025, suggesting the NMC could search their database with the term “whistleblow*”, and saying that the GMC had no trouble with providing the requested information. The NMC acknowledged receipt but did not provide a review outcome.

The Appellant complained to the Commissioner on 7 August 2024. The Commissioner obtained further information from the Appellant and from the NMC during his investigation. The Commissioner decided that compliance with the Request would exceed the appropriate limit. This was on the basis of information from the NMC that they did not have an allegation coding for whistleblowing, an email search for key words on the NMC’s public facing New Referrals Inbox returned 4593 results which would have to be individually reviewed, and other referrals may have been sent outside this inbox. The Commissioner did find that the NMC had not complied with section 16 FOIA as they had not provided reasonable advice and assistance, but he did not require the NMC to take any further steps.

The Appellant appealed to this Tribunal and her grounds of appeal are:

The Commissioner’s response maintains that the Decision Notice was correct. The Commissioner says that the fact the GMC could provide a response is irrelevant, as they are separate public authorities which will have different processes for handling and recording complaints. The Commissioner submitted three further questions to the NMC in order to respond to the grounds of appeal, and the response is based on these answers. The Commissioner submits that the NMC did limit its search to the time period in the Request, and it can only make a key word search in the New Referrals Inbox rather than in the referral forms. The fact that the NMC can collate statistics from referrals (such as where the referee lives, or what their role is), does not provide evidence that the NMC therefore has the ability to obtain the information that was requested.

The Appellant submitted a reply which says that the NMC has published whistleblowing data for a five-year period, which shows it is able to identify cases in which whistleblowing is present. The same data shows that 560 cases were referred to the NMC fitness to practice panel. The Appellant says that her Request requires the NMC to review the outcome of these 560 cases.

The relevant provisions of FOIA are as follows.

Any person making a request for information to a public authority is entitled—

if that is the case, to have that information communicated to him.

Exemption where cost of compliance exceeds appropriate limit.

that the notice against which the appeal is brought is not in accordance with the law, or

The “appropriate limit” under section 12(1) is £600 for central government and £450 for any other public authority (regulations 3(2) and 3(3) of the Freedom of Information and Data Protection (Appropriate Limits and Fees) Regulations 2004).

Costs are estimated at a rate of £25 per person per hour (Regulation 4(4)). This means that the limit for a public authority (which is not a government department) is exceeded after 18 hours of work. The costs which a public authority can take into account are set out in Regulation 4(3) as follows: (a) determining whether it holds the information; (b) locating the information, or a document which may contain the information; (c) retrieving the information, or a document which may contain the information; and (d) extracting the information from a document containing it.

A public authority does not have to provide a precise calculation of the cost of complying with a request, only an estimate is required. However, it must be a reasonable estimate. McInerney v Information Commissioner and the Department for Education [2015] UKUT 0047 (AAC) para 40 states, “[s12(1)]…depends on an estimate and…the issue for the Commissioner is whether the estimate is reasonable. If the public authority relies on the section before the Tribunal it will take the same approach as the Commissioner would.”

The appropriate limit is assessed on the basis of the information storage and retrieval systems that a public authority actually has - not the ideal systems, or the systems that an appellant thinks a public authority ought to have (Commissioner of Police for the Metropolis v Information Commissioner and Mackenzie [2014] UKUT 0479 (AAC)).

The issue in this appeal is whether the NMC was entitled to rely on section 12 FOIA to refuse to respond to the Request. This turns on whether it would take more than 18 hours to locate, retrieve and extract the requested information.

By way of evidence and submissions we had the following, all of which we have taken into account in making our decision:

An agreed bundle of open documents.

Oral submissions from the Appellant at the hearing.

In accordance with section 58 of FOIA, our role is to consider whether the Commissioner’s Decision Notice was in accordance with the law. As set out in section 58(2), we may review any finding of fact on which the Decision Notice was based. This means that we can review all of the evidence provided to us and make our own decision.

The main issue we discussed with the Appellant at the hearing was whether the Request was effectively just asking for a breakdown of data that is already contained in annual reports. She provided these reports with her reply to the Commissioner’s response.

The Appellant had provided a set of annual reports between 2020 and 2024. These are titled, “Whistleblowing disclosures report [2020 etc]” for “healthcare professional regulators”. Eight different regulators, including the NMC, provide a set of information for the annual report. The purpose of the report is described as – “On April 1 2017, a new legal duty came into force that required all prescribed bodies to publish an annual report on the whistleblowing disclosures made to them by workers”. The NMC provides annual data on the number of whistleblowing disclosures received by them, the action taken in response, and whether this was regulatory action, onward referral to another body, or sharing information with another body. They confirm that they have taken action in all “qualifying disclosures”. The NMC goes on to break down the regulatory action taken, including the number of disclosures that were dealt with via their Fitness to Practice Function.

The Appellant says that the availability of the data in these reports shows that the NMC does have the ability to answer her questions within the costs limit. As stated in her written submissions, she says that the NMC has reported the whistleblowing data for the entire period she has requested information about. She has calculated from the reports a total of some 662 cases, and based on this number the NMC should be able to obtain the information she is asking for. She says that a search of the identified cases should be able to answer her questions for at least a substantial part of the time period. Her request is for a breakdown of the specific regulatory action taken, i.e. whether there was an investigation, hearing and/or sanction. The Appellant says that she believes that whistleblowing will be a material issue whenever there has been a “qualifying disclosure”. In summary, her position is, “Given that the NMC routinely identifies cases in which whistleblowing is a material factor, a search in these limited number of cases should be able to answer the original question within the limits of appropriate costs.”

We have looked carefully at the information provided in the annual reports, and at the wording of the Request. Having done so, we do not agree that the data is the same, or that there is necessarily any significant overlap.

We have looked at the NMC’s initial response to the Request. This makes it clear that they do not have specific data or data points around “alleged adverse treatment of any kind due to whistleblowing activity”. The NMC had interpreted the Request as being about the specific issue of complaints that someone had been treated badly for whistleblowing. This is what the Appellant intended to ask about, and is the Tribunal’s interpretation of the wording as well. It is not the same as the data provided in the annual reports.

We did raise at the hearing the possibility of the Tribunal sending further questions to the NMC about the data in the annual reports and whether it could be used to answer the Request. However, having considered the content of these reports, we feel able to reach our own conclusion on this point. It is not necessary or proportionate to ask the NMC further questions before reaching our decision.

We have also considered the other points raised by the Appellant in her appeal. She confirmed at the hearing that the GMC did answer the same request – although they said that they had identified these through a review of allegation descriptions and so may have received other complaints that had not been found by this method. We agree that this suggests the GMC was able to provide a response within the costs limit. We agree with the Commissioner, however, that the fact the GMC could provide a response does not mean that the NMC is able to do so. They are separate public authorities who will have different processes for handling and recording complaints.

We have considered the searches described by the NMC. The Appellant says that they could use a keyword search of the submitted referral forms for the required timescale – there is no need to search the entire email system. This was explored by the Commissioner in his questions to the NMC when preparing the response to the appeal. The question and answer were as follows:

We consider that the Commissioner did ask about this point, and the NMC has given a clear answer that the Commissioner was correct. A key word search of just the referrals themselves could not be done, because each referral that arrives in the New Referrals Inbox is set up as its own case with specific reporting categories added to it. The NMC had previously explained that whistleblowing was not one of the allegation coding categories, which is why a manual search was required. The NMC had also confirmed to the Commissioner that the timeframe of their search was limited to the scope of the Request.

The Appellant also suggests that the NMC can provide the information because their website includes reports on how many referral forms are submitted each year and personal details of the person submitting the referral (such as where they live and their role). However, this type of information is very different from the specific and detailed information requested by the Appellant, which is a category of information that is not included as an allegation code.

We have considered the information that the NMC provided to the Commissioner about a test search of the New Referrals Inbox for "whistleblow" OR "whistleblower" OR "whistleblew" OR “whistleblowing". This returned 4593 entries. We accept that these would need to be individually reviewed to identify information within scope of the Request. We also accept that referrals might be sent outside this inbox, and so would not be picked up by this search. Overall, it is clear that accurately identifying and extracting information within scope of the Request would take significantly more than 18 hours. Even at one minute per result, that would take more than 75 hours – and this would not include looking for information from outside the relevant inbox. The alternative approach (which would be more accurate) would be an individual review of all 21,610 referrals sent during the relevant period, which would take even longer.

We therefore find that the NMC was entitled to rely on section 12 FOIA to refuse to respond to the Request.

We understand that the Appellant is conducting research on this topic. She is interested in the 662 cases that have been referred to by the NMC in the annual reports, and what happened if they went to a fitness to practice hearing. It may be that she can submit a different request which is targeted at the data in the annual reports and which the NMC is able to answer within the applicable costs limit.

We dismiss the appeal for the reasons set out above.