Janna Linde v The Information Commissioner

This is an appeal against the Commissioner’s decision notice IC-421069-M1X2 of 24 November 2025 which held that the North East London NHS Foundation Trust (the Trust) did not hold the information requested in part of a request for information and was entitled to rely on section 12 of the Freedom of Information Act 2000 (FOIA) to refuse to comply with the other part of the request. The Commissioner held that the Trust had breached its obligations under section 16 FOIA to offer advice and assistance.

The Commissioner did not require the public authority to take any steps.

The appellant is an employment advisor working in the Trust’s Talking Therapies team. In November 2024 she made a request to work abroad for six days. This was refused in a letter dated 15 November 2024 which included the following:

“While I appreciate the reasons behind your request and acknowledge that others may have had similar requests approved, I regret to inform you that I am unable to grant your request at this time. Currently, the service is experiencing high demand, and your role is critical in ensuring that we continue to provide the necessary level of care and support to our clients. Your presence during this period is essential to maintaining the service’s stability and effectiveness. Also, as I mentioned to you, all clinicians that have requested the same, have been declined and I have checked with the Redbridge TT service to which they have also said the same.”

The appeal relates to a request made by the appellant on 10 December 2024 in which the appellant requested the following information:

“1.

The number of NELFT employees within Talking Therapies services who have worked on some occasions remotely from abroad within the last 3 years.

If available, please also provide additional information about:

- Number of days of each separate working from abroad occasion (the number of episodes does not need to be linked to a particular individual)

- Role/ Band of individuals who worked from abroad

- Ethnic origin of the relevant individuals

- Reason for working from abroad (for example visiting other country, family emergency etc. The additional information should be provided separately for each category, without being linked to a particular individual.

2.

The number of NELFT employees across the organisation who have worked on some occasions remotely from abroad within the last 3 years.

If available, please also provide additional information about:

- Number of days of each separate working from abroad occasion (the number of episodes does not need to be linked to a particular individual)

- Role/ Band of individuals who worked from abroad

- The name of the department the relevant individuals are engaged in

- Ethnic origin of the relevant individuals

- Reason for working abroad (for example visiting other country, family emergency etc. The additional information should be provided separately for each category, without being linked to a particular individual.”

The Trust’s initial response to the request was the subject of decision notice IC-360149-L8F3 dated 6 August 2025 in which the Commissioner ordered the Trust to provide a fresh response to the request. This appeal relates to the fresh response.

The Trust provided a fresh response on 26 August 2025 in which it said that it did not hold the requested information. The appellant made a further section 50 application to the Commissioner in relation to the fresh response.

During the course of the Commissioner’s investigation the Trust confirmed that it maintained its position that it did not hold the information requested in part 1 of the request, but in relation to part 2 of the request it relied on section 12(1) FOIA.

In a decision notice dated 24 November 2025 the Commissioner decided, on the balance of probabilities, that the Trust did not hold any information within part 1 of the request.

The Commissioner found that the Trust was in breach of section 16 by not providing advice and assistance until late into the Commissioner’s investigation.

The grounds of appeal are, in summary, that:

The Commissioner submitted that he had noted the Appellant’s contentions about the Trust’s IT systems. As set out at paragraph 17 of the decision notice, the Trust specifically confirmed that it had made enquiries of its IT department. The Trust also confirmed that it had made a number of enquiries with different areas of its organisation. On the basis of the various enquiries the Trust had undertaken, the Commissioner remained satisfied that the Trust conducted reasonable searches such that the Trust was able to say that it does not, on the balance of probabilities, hold information within the scope of Question 1.

The Commissioner submitted that the Upper Tribunal in the case ofMcInerney v Information Commissioner & Department of Education [2015] UKUT 47 AACconfirmed that a public authority may rely on section 12 FOIA ‘late’.

The Commissioner submitted that the Trust gave details of how it calculated its estimate of time/cost looking at the work it would have to undertake to comply with the request. The Commissioner considered the estimate to be reasonable in the circumstances.

Under section 12(1) FOIA a public authority is not obliged to comply with a request for information where:

“the authority estimates that the costs of complying with the request would exceed the appropriate limit. “

The relevant appropriate limit, prescribed by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (‘the Regulations’) is £600.

In making its estimate, a public authority may only take into account the costs it reasonably expects to incur in relation to the request in–

The Regulations specify that where costs are attributable to the time which persons are expected to spend on the above activities the costs are to be estimated at a rate of £25 per person per hour.

The estimate must be sensible, realistic, and supported by cogent evidence (McInerney v IC and Department for Education[2015] UKUT 0047 (AAT) para 39-41).

The test is not a purely objective one of what costs it would be reasonable to incur or reasonable to expect to incur. It is a test that is subjective to the authority but qualified by an objective element. It allows the Commissioner and the tribunal to remove from the estimate any amount that the authority could not reasonably expect to incur either on account of the nature of the activity to which the cost relates or its amount. (Reuben Kirkham v Information Commissioner [2018] UKUT 126 (AAC)).

FOIA is not a means of reviewing a public authority’s record-keeping and testing it against best practice (Commissioner for the Metropolis v Information Commissioner andMackenzie[2014] UKUT 0479paragraph 37). As the Upper Tribunal stated in Cruelty Free International v Information Commissioner [2017] UKUT 0318 at paragraph 25:“The requestor has to take the public authority’s record keeping practices as they are, even if they are defective. That holds true whether the defect is poor administration or breach of a legal obligation.”

The tribunal’s jurisdiction is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

The issues for the tribunal to determine are:

We read and took account of an open bundle and oral submissions from the appellant.

We make the following findings of fact based on the evidence before us on the balance of probabilities.

As the tribunal carries out a full merits review it stands in the shoes of the Commissioner and it is not necessary for us to make findings on whether or not the Commissioner took into account certain arguments or in relation to the Commissioner’s approach to the evidence.

Part 1 of the request asks, in essence, for the number of employees within Talking Therapies services who have worked on some occasions remotely from abroad within the 3 years up to December 2024.

The appellant submitted that the wording of the letter of 15 November 2024 suggests that employees within Talking Therapies have been allowed to work abroad within the relevant period because it states ‘Whilst I appreciate the reasons behind your request and acknowledge that others may have had similar requests approved… Also as I mentioned to you, all clinicians that have requested the same, have been declined…”

We accept that the wording of the letter is ambiguous. The statement “I…acknowledge that others may have had similar requests approved” might suggest that requests to work abroad made by other people working in Talking Therapies had been granted. It could equally be a neutral and non-confirmatory acknowledgement of an assertion made by the appellant that others had had similar requests granted.

Since that letter the Trust has consistently asserted that the information is not held, because staff in Talking Therapies have not been allowed to work abroad in the relevant period.

In the Commissioner’s original investigation for the purposes of the first Decision Notice the Trust stated:

“No staff, clinical and admin, have been allowed to work abroad since the end of the lock down periods. We do not keep records of staff in Talking Therapies working from abroad as it is not standard practice and therefore no data is held.”

According to the Commissioner’s records, in a telephone call to the Commissioner dated 16 October 2025 the Trust said that the Lead of Talking Therapies had confirmed there was ‘no facility to work abroad’ and so no information would be held. The Trust said that the Director of Talking Therapies said that no one had been able to work abroad since the end of lockdown.

For the benefit of the appellant, we note that ‘facility’ can mean a physical feature or building, but ‘facility’ is being used here to convey that the Trust does not allow employees in Talking Therapies to work abroad.

In a telephone call to the Commissioner dated 4 November 2025 the Trust confirmed that the author of the email dated 15 November 2024 had said, with certainty, that no information was held because there was no facility to work abroad within Talking Therapies.

In the light of those unequivocal statements, including from the person who made the ambiguous statement in the email of 15 November 2024, we do not accept that the email supports a finding that the information is likely to be held.

The appellant also argued that the existence of IT logs that record that there were approximately 5166 instances of remote access to the Trust from abroad during the relevant period undermines the Trust’s assertion that the Trust does not hold any information within the scope of part 1 of the request.

The appellant was provided with information on access from abroad in response to a request made on 2 December 2025. The Trust’s response, which included her questions, was as follows:

The existence of these logs shows that the Trust holds information on the number of employees who accessed the Trust’s systems from abroad. It does not show that the Trust holds information on the number of employees within Talking Therapies services who have worked remotely from abroad within the last 3 years.

The logs include all access from abroad whether while working or on annual leave (or under any other arrangement) and whether authorised or not. The information does not identify which part of the organisation the individual works in, so it is not possible to infer whether any of the log ins were made by employees within Talking Therapies or whether they were made while working remotely from abroad.

The appellant submitted that the volume of access from abroad makes it inevitable that some staff within Talking Therapies are included in the logs. We do not accept that this is a reasonable inference, given the Trust’s direct statement that no working from abroad has been authorised in the relevant period.

The appellant also asserted that she was personally aware of one other person in Talking Therapies who had worked from abroad in the relevant period, although she said that she could not provide any further information or identify the person because they were concerned that the agreement might be withdrawn. The appellant also said that she had been told verbally by the author of the email of 15 November 2024 that a senior member of staff worked from abroad, but accepted that ‘she believed’ that there was a senior member of staff who was working from abroad. These broad assertions, with no details of the arrangements, are insufficient to displace the repeated direct statements by the Trust and we prefer that evidence on the balance of probabilities.

On the basis of the evidence before us we are satisfied that the Trust did not allow working from abroad in Talking Therapies in the relevant period. On the balance of probabilities, we find that the information within part 1 is not held by the Trust.

That part of the appeal is dismissed.

This is a very broad request. It covers a long period of time – three years. It covers all Trust employees. It covers all those who have worked remotely from abroad on some occasions. The request asks, if it is held, for the number of days worked abroad on each occasion and the reason on each occasion. The request asks, if held, for the role/ band; name of department and ethnic origin of the requestors.

The IT logs show that over 5000 Trust employees had accessed the Trust systems from abroad during the relevant period.

Unless this information is already centrally collated, it will be a very lengthy task to gather the extensive information requested.

The Trust’s position is clear and consistent: it does not collate this information. There is no central system for holding the requested information and the information, if held, would exist at individual managerial level and might be held in emails or local records.

The appellant submitted that it must be possible to derive the requested information more easily than the Trust asserts. The appellant asserted in her grounds of appeal that the Trust would have records, automatically generated, of log ins from abroad. She now has the IT logs although they are, for the reasons set out above, not the information requested: they are not a record of the number of employees that worked from abroad and cannot be used to provide the detailed information specified in the request.

The appellant highlighted that the Trust has flexible working and other policies, but she did not point to any requirement to keep central records of the requested information and the existence of these policies does not lead us to doubt the Trust’s assertion that no central records are held other than the IT logs.

We accept that the information is not held centrally and is recorded, if at all, by individual managers in emails or local records. As the request is so broad we accept that it will be a very lengthy task to gather the information in respect of all employees at the Trust over a three year period.

In relation to the estimate, we do not accept that it is necessary to spend an initial period of 13.5 hours identifying which managers worked in the Trust but not in Talking Therapies. The Trust can simply email all managers. Part 2 of the request asks for figures over the entire organisation. That includes managers in Talking Therapies. As there is no facility to work abroad in Talking Therapies, those managers could just ignore the email and no work would be wasted by those managers in searching for relevant information.

We accept that the Trust is in a good position to give a reasonable estimate of the number of managers that work in Talking Therapies. We accept that a reasonable estimate is 10%, leaving 1312 managers who may hold relevant information.

We accept that some managers would be able to respond quickly and easily to confirm that they do not hold information. Others would be likely to have to conduct a search of email correspondence, and it would take a significant amount of time to locate all the requested information. Given the number of log ins from abroad in the relevant period, there are likely to be a significant number of managers who need to conduct those searches. We accept that staff turnover is likely to increase the length of time needed because the request covers a period of three years. Taking into account the variation in the time needed, we accept that one minute per manager is a conservative average estimate. That amounts to over 21 hours work.

On that basis we accept that the estimate is reasonable, and that the Trust was entitled to rely on section 12. That part of the appeal is also dismissed.

We note that the Commissioner found that the Trust was in breach of section 16 by not providing advice and assistance until late in the Commissioner’s investigation, and the opportunity remains for the appellant to engage with the Trust to assist her in refining her request.