Penelope Ballinger v The Information Commissioner & Anor

This Decision relates to an Appeal brought by Penelope Ballinger (“the Appellant”) against a decision notice (“DN”) with reference IC-361769-Y5P5 issued by the Information Commissioner (“IC”) on 1 August 2025 upholding Manchester University NHS Foundation Trust (“the Trust”) reliance on section 12(4) and 12(1) FOIA to aggregate and refuse twelve requests made by the Appellant on 5 December 2024. In doing so, the IC accepted that the Trust was entitled, under section 12(4) FOIA, to aggregate the estimated costs of complying with all the requests.

On 5 December 2024, the Appellant submitted 12 requests to the Trusts as set out below:

On 24 December 2024, the Trust responded to the requests in the following terms:

“The Trust does not hold the requested information in one central register. Therefore, in order to provide a response to this question, the Trust would need to contact Nurse managers at each individual hospital and local care organisation to manually collate this information through reviewing individual personnel files. The Trust employs over 9,500 staff who are Nursing and Midwifery registered. Even if each file could be searched in 1 minute, which is not feasible, the request would still take over 150 hours of staff time. Therefore, the Trust has determined to undertake this task would take the request over the appropriate limit.

The appropriate limit has been specified in regulations and it is set at £450 for public authorities. This represents the estimated cost of one person spending 18 hours in determining whether the Departments hold the information, locating, retrieving, and extracting the information. Under section 12 of the Freedom of Information Act the Department is not obliged to comply with your request and we will not be processing your request any further.

As the Trust has relied on Section 12 of the FOI Act to refuse the request, it must provide advice and assistance under Section 16 to help you refine your request such that it falls within the cost limit. The Trust notes that you previously requested this information in FOI 0187-24, which was referred to the Information Commissioner’s Office. Their formal decision required the Trust to provide advice and assistance under Section 16, which will be sent to you in a separate letter later today. Please refer to this letter for guidance on refining your request.

The Trust has recently completed significant changes in its governance across the organisation. As part of these changes, the process for referrals to the NMC is being strengthened and the Trust has drafted a Standard Operating Procedure (SOP). This draft SOP is currently under review and awaiting approval prior to publication. Information that is intended for future publication is exempt under Section 22 of the Freedom of Information Act 2000.

The Trust does not hold any further documentation in response to your

Question.”

On 28 December 2024, the Appellant sought an internal review.

The Appellant asserted that although the Trust had aggregated the requests, the Trust had not provided any advice under s16 FOIA as to how the Appellant may reframe the requests so as to obtain the information requested.

On 17 January 2025, the Trust upheld its original position following an internal review. The Trust stated that the only reliable method of identifying referrals during the relevant period would be through a manual review of individual personnel files. The Trust explained that it employs approximately 9,500 nurses and midwives and that, in the absence of any centralised record, each file would need to be examined to determine whether a referral had been made. It estimated that even a very limited review would exceed the statutory cost limit, noting by way of illustration that if a search of each personnel file took an average of 90 seconds, then reviewing even 10% of the relevant staff would already exceed the 18-hour threshold permitted under the Fees Regulations. In an effort to comply with its duty under section 16 FOIA, the Trust also proposed a number of ways in which the Appellant’s requests might be narrowed. These included inviting the Appellant to restrict the requests by reference to particular staff groups at specific hospital sites and offering to undertake a limited manual review of a smaller sample of records. In that context, the Trust indicated that it would review 36 personnel files selected from a targeted cohort where referrals were considered more likely, and to disclose the results of that exercise, although it made clear that such an approach would not produce a complete dataset for the full period requested.

Moreover, in its letter providing advice (dated 24 December 2024), the Trust stated that it had recently completed significant changes in its governance across the organisation. As part of these changes, the process for referrals to the Nursing and Midwifery Council (“NMC”) was being strengthened and the Trust began centrally recording referrals to the NMC in June 2024. While this data fell outside the requested time period, the Trust offered to provide the number of referrals from June to November 2024 if the Appellant wished to receive this information.

The Trust satisfied itself that as the 12 separate FOIA requests submitted on 5th December 2024 covered all sites, the Trust met its Section 16 obligation in each of the responses by referring the Appellant to the letter dated 24th December 2024, so that the Appellant could reframe the requests accordingly.

On 9 February 2025, the Appellant contacted the ICO to complain about the handling of the requests by the Trust. The Appellant emailed the ICO separately in relation to all 12 requests, noting in each case that the Appellant “disagree[s] with the public body’s refusal to provide the information I requested.”

In the DN the IC came to the following conclusions:

The Trust was entitled to aggregate the Appellant’s 12 FOIA requests under s 12(4) because all 12 requests were made on the same day, by the same person and all sought similar information.

The cost of responding would exceed the £450 limit applicable to the Trust. The Trust had previously estimated that manually checking the files of 9,500 NMC registered staff (at 1 minute per file) would take over 150 hours, far beyond the 18‑hour statutory limit. Therefore, the Trust was entitled to refuse all 12 requests under section 12(1).

The Trust met its duty to provide reasonable advice and assistance. The Trust explained that only 36 employee files could be reviewed within the cost limit and advised that the Appellant could refine the requests (e.g. limit it to midwives or nurses and specify a single location) to make it answerable.

The IC did not require any further steps to be taken by the Trust.

On 8 September 2025, the Appellant appealed to the Tribunal against the IC’s DN. In summary, the Appellant’s grounds of appeal are as follows:

The Trust is not entitled to aggregate the requests for information as aggregation does not acknowledge the functional autonomy of each unit.

The Trust failed to provide a reasonable costs estimate; the Trust’s statement that it did not have a centralised record implies the data was held locally; the Trust provided no breakdown of search times or activities by reference to each unit, and each unit ought to have a designated senior nurse responsible for managing referrals. Furthermore, other search methodologies could have retrieved the requested information without exceeding the appropriate limit.

The Trust failed to provide reasonable advice and assistance to refine the requests.

In its response, the IC resists the appeal and maintains that the DN of 1 August 2025 was correct. The IC’s position is that the Trust was fully entitled to aggregate the Appellant’s twelve requests under section 12(4) FOIA because all the statutory conditions for aggregation were satisfied: The requests were made by the same individual, received on the same day, and sought the same or similar categories of information, namely the number of nurse and midwife referrals to the NMC between 2019 and 2023, alongside the Trust’s fitness‑to‑practice protocol.

The IC relies on the broad wording of regulation 5 of the Fees Regulations, which makes clear that requests need only relate “to any extent” to the same or similar information to qualify for aggregation. He states that although the requests were framed by hospital or care organisation, they nonetheless sought substantively identical data and therefore required the same type of search. For FOIA purposes, the Trust is a single statutory public authority, and its internal management divisions do not affect the legality of aggregation.

The IC further submits that the Trust’s cost estimate was reasonable. The Trust demonstrated that it employed approximately 9,500 NMC‑registered staff across multiple hospitals and community services and that, because the Trust held no centralised record of referral activity prior to June 2024, locating historic referral information would require a manual review of individual personnel files. The IC states that a one‑minute minimum per file was a credible estimate, and more likely an under‑estimate, given that many files include both paper and electronic components. Even inspecting a fraction of those files would far exceed the 18‑hour limit. The IC accepts the Trust’s explanation that alternative retrieval methods were either unavailable or not viable. The Trust had considered searching email systems but concluded that such searches were impractical because routine correspondence with the NMC could not be separated efficiently from referral‑specific material. In the IC’s view, the Appellant’s suggestions that the information should be retrievable from senior nurse oversight records, governance logs, or NMC portal data was unsupported by evidence, and he emphasises that FOIA is not a mechanism for reviewing or improving an authority’s internal record-keeping practices.

As to section 16 FOIA, the IC maintains that the Trust fulfilled its duty to advise and assist. The IC points out that in relation to the earlier FOIA request, the Trust (acting on an ICO requirement) had already provided the Appellant with detailed guidance explaining that only 36 files could be reviewed within the cost limit and inviting the Appellant to specify whether the Appellant wished to prioritise nursing or midwifery staff and which site the Appellant preferred the searches to be conducted at. The IC considers it reasonable that the Trust referred back to this advice when responding to the twelve subsequent requests, since the underlying subject matter was identical. In the IC’s view, it was not necessary for the Trust to create twelve new iterations of advice when a single set of guidance had been issued and addressed the core issue affecting all the requests.

The IC also rejects the Appellant’s criticisms of the ICO’s investigative process. He states that he examined evidence from both the earlier and later investigations, including the Trust’s explanations regarding the absence of a central register and the need to search personnel files, and he found those explanations consistent and credible. He considers that the Appellant provided no material evidence showing that the Trust held the information in a more accessible format that would have reduced the cost. The IC therefore concludes that the DN was lawful, properly reasoned, and based on sufficient evidence.

According to the IC, the Appellant’s submissions amount to disagreement with the outcome rather than proof of any legal error or misapplication of FOIA.

Having reviewed the materials and submissions in the Appeal, it appeared to the Tribunal that the Trust’s time and cost estimate in dealing with the Appellant’s requests relied primarily on the assertion that staff would need to search approximately 9,500 personnel files, without demonstrating consideration of other reasonable and targeted search methodologies as suggested by the Appellant. Potential alternative sources included records maintained by senior/lead nurses responsible for governance of fitness-to-practice matters, and a digital referral portal used for NMC referrals. These alternatives appeared not to have been addressed adequately in the Trust’s submissions. Accordingly, the Tribunal issued directions on 13 March 2026 that required the Trust to answer the following questions:

Whether the Trust uses or has used a digital referral portal for NMC referrals and, if so, since when.   

The time estimate and methodology for conducting a search of such portal responsive to the request(s), including search terms. 

Whether a senior/lead nurse at each hospital maintains or has maintained logs or summaries of fitness-to-practice and/or NMC referral cases.

The time estimate and methodology for conducting a search of lead nurses logs responsive to the request(s), including search terms. 

The Tribunal directed that should the Trust maintain that only an individual personnel file search would identify the requested information, then the Trust is to provide submissions as to why the portal and/or governance log searches cannot address the request(s).

The directions also made provision for the Appellant to reply to the Trust’s answers to these questions to the extent that those answers raised any new matters.

Following the Tribunal’s directions of 13 March 2026, the Trust provided further submissions addressing in particular the existence of alternative sources of data and the feasibility of searching those sources. Central to those submissions was the position taken in relation to the NMC referral portal and its functionality.

The Trust confirmed that referrals to the NMC have been made through an online portal since at least 2020. However, it stated in clear terms that the portal “does not have the functionality to allow the Trust to search for, or analyse, referrals.” The Trust did not describe the portal as a case management or reporting system but instead characterised it as a mechanism through which referrals are submitted externally. On that basis, it maintained that the portal could not be used to generate the type of aggregated information sought by the Appellant, nor could it be interrogated using search terms to identify relevant cases.

In response to the Tribunal’s specific direction requiring a methodology and time estimate for searching the portal, the Trust stated that it was unable to provide such an estimate because no such search could be undertaken using the system. The Trust submitted that, in those circumstances, the absence of a methodology or time estimate was not indicative of non-compliance with the directions but rather a reflection of the system’s limitations. The Trust’s position was that, where no search functionality exists, there is no meaningful basis upon which a search methodology could be devised.

Similarly, in relation to governance records, the Trust stated that prior to June 2024 it did not maintain a central log of referrals, and that while senior or lead nurses were encouraged to make referrals through a central process, they were not required to keep local logs or summaries. The Trust submitted that this explained why the Trust was unable to provide a methodology or estimate for searching such records for the relevant period. The Trust emphasised that, although a central log now exists, it does not contain recorded information for the period covered by the requests.

In response, the Appellant filed written submissions contending that the Trust’s responses did not fully engage with the Tribunal’s directions, in particular in failing to provide detailed methodologies or time estimates.

The Appellant’s overarching submission is that the Trust’s responses do not meaningfully engage with the questions posed by the Tribunal and do not provide the required methodologies, time estimates, or explanations necessary to support its continued reliance on section 12 FOIA.

In relation to the Tribunal’s direction concerning the NMC referral portal, the Appellant submits that the Trust’s response is incomplete and inadequate. While the Trust has confirmed that it has used an online referral portal since at least 2020, the Appellant argues that it has failed to provide any meaningful explanation of how information arising from the use of that portal could be identified or retrieved. The Appellant contends that the Trust has limited its answer to the assertion that the portal lacks search functionality, without addressing whether records generated through the use of the portal, such as acknowledgements, confirmations, or related correspondence, are held elsewhere and could be searched. In the Appellant’s submission, the direction required the Trust to set out a methodology for locating responsive information arising from portal use, rather than simply describing the limitations of the portal itself.

The Appellant further submits that the Trust has failed to comply with the Tribunal’s directions in relation to governance records. The Appellant argues that the Trust’s statement that senior or lead nurses were encouraged to make referrals centrally does not establish that no records or summaries relating to referrals were held at a local level. In particular, the Appellant contends that the Trust has not adequately addressed whether correspondence, informal records, or summaries relating to referrals may exist within hospital level governance structures.

The Appellant places particular reliance on earlier statements made by the Trust during the course of the FOIA process, in which it indicated that responding to the requests would require contacting nurse managers or senior staff across different parts of the organisation in order to collate referral information. The Appellant submits that this demonstrates the existence of an identifiable search methodology, and that the Trust has failed to explain why it is now unable to provide a corresponding time estimate or description of that process. The Appellant argues that the Tribunal expressly required a methodology and estimate, including on a hypothetical basis if necessary, and that the Trust’s failure to provide one amounts to non-compliance with the directions.

The Appellant also challenges the Trust’s assertion that governance logs do not exist for the relevant period. The Appellant submits that this position is inconsistent with prior disclosures made by the Trust, including the existence of a centrally held log which contains entries relating to referrals predating June 2024. The Appellant argues that this undermines the Trust’s claim that governance records cannot assist in identifying referrals during the period in question and calls into question the assertion that only a full personnel file search could yield the requested information.

Finally, the Appellant contends that the deficiencies in the Trust’s responses should be considered in assessing the reasonableness of the cost estimate under section 12. The Appellant submits that, in the absence of adequate explanation as to why alternative methods are not viable, the Trust has failed to discharge the burden of demonstrating that the cost limit is engaged. The Appellant therefore invites the Tribunal to find that the Trust has not complied with its obligations under FOIA and that its reliance on section 12 cannot be sustained.

A person who seeks information from a public authority is entitled to be informed whether that authority holds the requested information (section 1(1)(a) FOIA).

If the information is held, the requester is further entitled to have it communicated to them (section 1(1)(b) FOIA).

However, where the cost of complying would exceed the appropriate limit, a public authority is not required to comply. Section 2 FOIA provides:

“(1)

Section 1(1) does not oblige a public authority to comply with a request forinformation if the authority estimates that the cost of complying with therequest would exceed the appropriate limit.

(2)

Subsection (1) does not exempt the public authority from its obligation tocomply with paragraph (a) of section 1(1) unless the estimated cost ofcomplying with that paragraph alone would exceed the appropriate limit.

(3)

In subsections (1) and (2) “the appropriate limit” means such amount as maybe prescribed, and different amounts may be prescribed in relation to differentcases.

(4)

The [Secretary of State] may by regulations provide that, in suchcircumstances as may be prescribed, where two or more requests forinformation are made to a public authority—

(a)

by one person, or

(b)

by different persons who appear to the public authority to be acting inconcert or in pursuance of a campaign,the estimated cost of complying with any of the requests is to be taken to bethe estimated total cost of complying with all of them.

(5)

The Secretary of State may by regulations make provision for the purposes ofthis section as to the cost to be estimated and as to the manner in which theyare to be estimated.”

The regulations made pursuant to sections 12(4) and 12(5) FOIA, the Freedom of Information and Data Protection (Appropriate Limits and Fees) Regulations 2004 (“the Fees Regulations”), set out the relevant provisions concerning the “appropriate limit” and specify the categories of cost that may be considered when calculating that limit:

When a public authority is estimating whether the appropriate limit is likely to be exceeded, it can include the costs of complying with two or more requests if the conditions laid out in Regulation 5 of the Fees Regulations can be satisfied.

Section 12(4) of FOIA states:

“The Secretary of State may by regulations provide that, in such circumstances as may be prescribed, where two or more requests for information are made to a publicauthority –

(a)

by one person, or

(b)

by different persons who appear to the public authority to be acting inconcert or in pursuance of a campaign, the estimated cost of complyingwith any of the requests is to be taken to be the estimated total cost ofcomplying with all of them.”

Regulation 5 of the Fees Regulations states:

“(1)

In circumstances in which this regulation applies, where two or more requests forinformation to which section 1(1) of the 2000 Act would, apart from the appropriate limit to any extent apply, are made to a public authority –

(a)

by one person, or

(b)

by different persons who appear to the public authority to be acting inconcern or in pursuance of a campaign, the estimated cost of complying withany of the requests is to be taken to be the total costs which may be taken intoaccount by the authority, under regulation 4, of complying with all of them.

(2)

This regulation applies in circumstances in which –

(a)

the two or more requests referred to in paragraph (1) relate, to any extent,to the same or similar information, and

(b)

those requests are received by the public authority within any period of sixtyconsecutive working days.”

Under section 58 FOIA the Tribunal’s role is to consider whether the DN is in accordance with the law or, where the IC’s decision involved exercising discretion, whether it should have exercised it differently. It is a full merits jurisdiction.

The Tribunal may receive evidence that was not before the IC and may make different findings of fact from the IC. If the Tribunal determines the DN was not in accordance with the law or that a discretion should have been exercised differently it shall allow the appeal or substitute a different Notice that could have been served by the IC.  In any other case the Tribunal shall dismiss the Appeal.

For the purposes of determining this appeal, the Tribunal considered those documents contained within the open bundle consisting of 332 (electronic) pages and the submissions of the Trust and the Appellant following the Tribunal’s directions dated 13 March 2026.

The central issue for the Tribunal is whether the IC’s decision that the Trust is entitled to rely on section 12(4) FOIA to aggregate the Appellant’s requests and to rely on section 12(1) FOIA to refuse the requests is in accordance with the law and, to the extent that the DN involved exercising a discretion, whether it should have been exercised differently. This requires the Tribunal to consider whether the Trust has established, on a reasonable evidential basis, that compliance with the Appellant’s requests would exceed the appropriate cost limit within the meaning of section 12(1) FOIA. In determining that question, the Tribunal has also given consideration to the additional submissions provided by the Trust and the Appellant in response to the directions of 13 March 2026.

The Tribunal begins with the Trust’s core submission, maintained throughout the proceedings, that prior to June 2024 it did not hold a centralised or structured record of referrals to the NMC. The Trust’s evidence is that any record of such a referral would be contained, if at all, within the individual personnel file of the member of staff concerned. Given the scale of the organisation, comprising approximately 9,500 relevant employees, the Tribunal accepts that a process of identifying referrals by reviewing personnel files would involve examining a very large number of records and would significantly exceed the statutory cost limit even on conservative time estimates.

The focus of the Appellant’s case, however, is that this is not the only available method and that alternative data sources have not been properly explored. The Tribunal therefore turns to the specific alternatives considered in the directions.

In relation to the NMC referral portal, the Trust has stated that it has used such a portal since at least 2020 but that the system “does not have the functionality to allow the Trust to search for, or analyse, referrals.” The Trust submits that the portal operates merely as a gateway through which referrals are transmitted to the NMC and is not a system from which the Trust can extract or interrogate data. The Tribunal accepts that the Trust’s explanation is limited in detail. However, in the absence of evidence to the contrary, and having regard to the description of the system as an external submission mechanism rather than an internal record management tool, the Tribunal is satisfied on the balance of probabilities that the portal does not provide a means by which the requested information could be identified through a targeted search. It is consistent with the nature of many online platforms designed to be a gateway for submitting or transmitting information to an organisation but not necessarily including functionality to permit a retrospective interrogation or analysis of that information. Importantly, there is no evidence before the Tribunal that the Trust does in fact have access to a searchable dataset within this system, or that it has failed to apply such functionality.

The Tribunal has considered whether, notwithstanding the absence of any built-in search functionality, the Trust could nevertheless identify relevant information generated through the use of the portal, for example by locating acknowledgements or related correspondence. However, the Trust has also addressed this possibility, indicating that such material, if it exists, would be dispersed across the organisation and would not be capable of targeted retrieval without generating a very large volume of irrelevant results. In the absence of evidence demonstrating a workable and proportionate search methodology, the Tribunal is not satisfied that this route offers a realistic alternative to the manual review of personnel files.

The Tribunal next considers the position in relation to governance logs and records held by senior or lead nurses. The Trust’s evidence is that prior to June 2024 it did not maintain a central log of referrals and that, while staff were encouraged to make referrals through a central process, they were not required to keep local logs or summaries. The Appellant submits that this does not exclude the possibility that such records exist and could be searched. While the Appellant submits that such records are likely to exist, the Tribunal is not satisfied on the evidence before it that the Trust holds a structured or accessible body of governance records from which the requested information could be extracted without extensive manual investigation. The mere possibility that records might have been created does not demonstrate that they are held in a form that would allow the requested information to be extracted within the cost limit.

The Tribunal has also considered the Appellant’s reliance on the Trust’s earlier statements that responding to the requests would involve contacting managers across its constituent units and that this demonstrates the existence of an identifiable search methodology. In the Tribunal’s view, the previous statements made by the Trust are not inconsistent with its case in this appeal. It confirms that, on the Trust’s evidence and submissions, the practical reality is that locating and retrieving the requested information would require enquiries to be made through managers with a view to identifying relevant files or information. This is in substance the same manual and resource intensive process as reviewing personnel files and does not amount to an alternative, more efficient search methodology. The Tribunal is therefore not persuaded that the earlier explanation from the Trust undermines its time or cost estimate.

The Appellant further submits that the Trust failed to comply with the Tribunal’s directions by not providing methodologies or time estimates for the alternative searches identified. The Tribunal accepts that the Trust’s responses were limited in detail and might have been expected to provide fuller explanation. However, the Tribunal considers that the Trust did address the substance of the directions by explaining why the identified alternatives (namely the portal and governance logs) could not be used to satisfy the requests. Although fuller detail might have been expected in response to the Tribunal’s directions, the Tribunal is satisfied that the Trust addressed the substance of those directions by explaining why the identified alternatives could not be used. In circumstances where no viable search methodology is said to exist, the absence of a detailed methodology or time estimate does not materially affect the Tribunal’s assessment under section 12.

More broadly, the Tribunal has considered the Appellant’s criticisms of the Trust’s submissions and whether they are insufficiently detailed or inherently unsatisfactory. While the Appellant’s criticisms question the Trust’s explanations, they do not amount to positive evidence that an alternative, proportionate method of locating the requested information exists They also do not establish that the Trust’s account of the available methods of locating and retrieving the requested information is inconsistent or implausible. The Tribunal is not in a position to infer the existence of a searchable dataset or an efficient retrieval method simply because such an arrangement might be desirable or expected.

Accordingly, having considered all of the circumstances, the Tribunal finds that the Trust has provided a reasonable estimate of the cost of compliance based on the only viable method of locating and retrieving the requested information, namely the manual review of a large number of personnel files. That exercise would clearly exceed the appropriate cost limit, and section 12(1) FOIA is therefore engaged.

For the same reasons, the Tribunal is not satisfied that any of the alternative approaches suggested by the Appellant or explored in the Tribunal’s directions provide a realistic basis for answering the Appellant’s requests within the statutory limit.

Accordingly, the appeal is not allowed.