Understanding Your Right to Information: When Public Bodies Don't Hold the Records You Ask For

NCN: [2026] UKFTT 00981 (GRC) Case Reference: FT/EA/2025/0091 First-tier Tribunal (General Regulatory Chamber) Information Rights Heard by Cloud Video Platform Heard on: 21 & 22 April 2026 Decision given on: 01 July 2026 Before JUDGE SAWARD JUDGE ARMSTRONG-HOLMES TRIBUNAL MEMBER YATES Between [APPELLANT] Appellant and (1) INFORMATION COMMISSIONER (2) NURSING AND MIDWIFERY COUNCIL Respondents Representation : For the Appellant: Professor Mark Engelman, Counsel For the First Respondent: Did not appear For the Second Respondent: John Fitzsimons, Counsel Decision: The appeal is dismissed. REASONS Introduction 1. The Freedom of Information Act 2000 (“FOIA”) provides for a general right of access to information held by public authorities. That right is subject to exceptions and exemptions. It is enforced by the Information Commissioner (“the Commissioner”) with a right of appeal from a decision of the Commissioner to this Tribunal.

2. There are two outstanding appeals brought by the Appellant against separate decisions of the Commissioner both concerning requests for information made to the Nursing and Midwifery Council (“the NMC”). The appeals were heard together. The appeal bearing Tribunal reference FT/EA/2024/0359 is subject to a separate decision. A third request for information was settled during the course of these proceedings.

3. This appeal is made against the Commissioner’s decision referenced IC-348999-P2J2 of 11 February 2025. In that decision, the Commissioner decided that, on the balance of probabilities, the NMC did not hold the requested information.

4. This Decision provides a summary of the submissions, evidence and the Tribunal’s view of the law. It does not seek to capture every point made, it being impractical and unnecessary to do so. The absence of any specific submission or evidence does not mean it has not been considered. Background 5. The Appellant has provided personal background information to provide context and explain why the requested information is sought. It is unnecessary for that personal information to be recorded in this published Decision. The Hearing 6. The hearing was conducted by online video (CVP). The Tribunal was satisfied this was a fair and just way to conduct the proceedings.

7. The Appellant attended and was represented by Professor Mark Engelman, Counsel.

8. The Commissioner notified the Tribunal in advance that he did not intend to appear or be represented at the hearing. He relies instead upon his Decision Notice, his response to the appeal and the supporting submission from the NMC.

9. The Second Respondent, the NMC, was represented by John Fitzsimons, Counsel.

10. The Tribunal had before it an open bundle of around 378 pages, and a supplementary bundle of 9 pages. In addition, the Appellant provided an Authorities bundle and skeleton argument. The NMC provided a skeleton argument addressing both appeals and a separate costs application. Procedural Matters 11. A costs application had been submitted by [APPELLANT] against the NMC. For time management reasons, the costs application was heard on day 2 (i.e. on 22 April 2026). At the hearing, Professor Engelman said that the costs application dated 3 April 2026 (and re-submitted with amendments on 8 April 2026) related to both appeals (0359 and 0091) plus the application for certification of a contempt. During the hearing, [APPELLANT] withdrew the costs application insofar as it related to the appeals. The Tribunal consented to the withdrawal which took effect pursuant to Rule 17 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. The Request 12. On 20 February 2024, the Appellant made the following request to NMC: “ I am looking for historic details of registration of nurses for two individuals, specifically the date they left the register of nurses. One is [NAME] who registered on 1 Dec 1959 under her maiden name. For reasons of fact checking a biography, I would like to know when [NAME] deregistered as a nurse. The second is [NAME], DOB Jan 1950. I do not have the date of registration but would like to know both the date of registration and the date of deregistration. This is for the same purpose of historical accuracy in fact checking biographical details .” 13. Whilst the Appellant was provided with some information in relation to the first named nurse, it was clarified at the hearing that none of the requested information has been supplied. The first named nurse is no longer alive. The second nurse is alive. The Response 14. The NMC’s response of 27 February 2024 stated that it “may” hold the information, but that it was applying the exemption under section 40(2) of FOIA. Following an internal review, the NMC wrote to the Appellant on 28 March 2024 maintaining that position.

15. After the Appellant complained to the Commissioner on 5 June 2024, the NMC reviewed its position and stated that the requested information had previously been publicly available. In an updated response to the Appellant dated 7 October 2024, the NMC provided some information concerning one of the nurses but stated that it did not hold anything further.

16. Whilst dissatisfied with the NMC’s response, the Appellant notified the Commissioner that they would provide the NMC with other details located through their own research to assist the NMC in its searches.

17. The NMC responded further on 13 November 2024 stating that it could not locate any further information within the scope of the Request. The Appellant was asked if they had located the PIN (i.e. the unique code given to every person on the nursing register) as the NMC said it was limited in its searches without this information.

18. In a different but related request, the NMC was able to locate the General Nursing Council registration of one of the nurses. On the related case, the Commissioner decided that the NMC should provide the GNC registration number, but no further information was held. Decision Notice 19. In its decision of 11 February 2025, the Commissioner recorded that the NMC originally stated that it may hold the requested information, but it would be withheld under section 40 FOIA (third party personal information). The NMC then changed its position, withdrew its reliance on section 40 and provided some information.

20. As a procedural matter, the Commissioner found that the NMC breached sections 1(1)(a) and 10(1) of FOIA as it had not confirmed whether or not it held the requested information, nor provided the information it did hold, within 20 working days. However, the Commissioner determined that, on the balance of probabilities, the NMC did not hold any further information within the scope of the Request.

21. In reaching that view, the Commissioner set out the explanations received from the NMC. In particular: (a) Any information held within scope of the Request would be visible in what the NMC referred to as the ‘red books’. These are effectively a paper register of nurses and midwives which are held by the GNC, one of the predecessors to the NMC. These registers were published when they were ‘live’. Although they are no longer published, they were once in the public domain. (b) The NMC had advised the Appellant that further information may be held at The National Archives, but it is not available online so would involve a visit to view any relevant information. (c) Whilst the NMC appreciated that the information contained within the paper register is limited, the NMC was not responsible for the content because it inherited the paper register from the GNC. (d) There could be information for the second nurse on an archive called DP2000. This is a version of microfiche which stores information from the 1980s to early 2000s. DP2000 can only be searched by PIN hence why the NMC asked the Appellant if the PIN had been obtained through other lines of enquiry. (e) In response to the complaint, the NMC realised that the scanned copy of the ‘red book’ entry for the first nurse was partially obscured. It provided another copy of the scan displaying the GNC registration number.

22. The Commissioner recognised the Appellant’s frustration that they were originally given the impression that the NMC held the information, but relied upon section 40 FOIA, to later being advised that NMC only held limited information on one nurse and none on the other.

23. The Commissioner noted that the information requested is very similar and subject to the same searches in another complaint (IC-317357-B1V4), where the Commissioner was satisfied that no further information was held.

24. It is recorded that the Appellant provided the Commissioner with information about the two nurses obtained through their own research. However, the Commissioner was “ mindful that the existence of other information about the nurses from other sources does not mean that the NMC actually holds the requested information .” 25. The conclusion reached by the Commissioner was that “ NMC has carried out adequate searches of all records, whether electronic or paper, and established that it does not hold any further information within the scope of the Request .” Notice of Appeal 26. In essence, the grounds of appeal are that the Decision Notice is wrong because: 26.1 NMC breached the duty under section 16 FOIA to provide advice and assistance to the Appellant which conformed with the requirements of the Code of Practice on the Management of Records Issued (“the Code of Practice”). 26.2 The NMC not only failed to provide the Appellant with advice and assistance with her Request but actively misled her. The Commissioner failed to deal with this aspect of the complaint. 26.3 The Commissioner failed to deal with NMC’s breach of the Code of Practice upon failing to make any determination on the lateness of the NMC’s internal review. 26.4 The Commissioner failed to perform its obligations under section 50 FOIA by: (a) Failing to recognise that the NMC had breached section 1(1) FOIA by only confirming that it ‘may’ hold the requested information when it finally responded to the request. (b) Failing to recognise the absurdity of the NMC’s request of the Appellant for the nurse’s PIN number, which had itself been the subject of a FOIA request made of the NMC by the Appellant, which the NMC had refused on plainly spurious grounds. (c) Wrongly identifying (at paragraph 15 of the Decision Notice) “ the Appellant as one seeking to oblige the ICO to create new recorded information rather than search its search its existing 5 archives. ” (d) Failing to grasp that the NMC, as a public body, was required to have a record system that includes the capacity to search for information in accordance with paragraph 2.3.9 of the Code of Practice issued under section 46 of FOIA. (e) Concluding that, on the balance of probabilities, the NMC had carried out adequate searches of all its records when the NMC did not possess a capacity to search its records and/or refused to disclose that capacity to the Appellant. (f) Being led into error by concluding that only two of the archives held by the NMC were subject to a reasonable search i.e. its electronic and paper archives, entirely overlooking its microfiche and microfilm archives. (g) Breaching the Appellant’s rights to natural justice by failing to supply and/or disclose to the Appellant all the Commissioner’s communications with the NMC concerning its DP2000 microfiche. (h) Failing to recognise that the NMC was misleading the Commissioner about the nature and extent of searches undertaken. In particular (i) sequentially drip feeding both the Commissioner and NMC information as to the existence of its 5 archives (ii) refusing the Appellant access to the PIN for the second nurse on the basis of section 40 FOIA (iii) waiving that basis “ as it related to the content of the NMC records as it related to the Requested Information ”, and (iv) explaining that a PIN was necessary and essential to searching its microfiche/microfilm in the knowledge that it had refused the Appellant information relating to the PIN. (i) Erring in law by failing to properly apply the evidential principle of ‘the balance of probabilities’. (j) Using his discretion afforded by section 50 FOIA incorrectly. The Commissioner’s Response 27. The Commissioner resists the appeal, principally on the ground that the Appellant has failed to identify why the Commissioner’s Decision Notice is not in accordance with the law. Reliance is placed upon the findings and reasons within the Decision. In addition, the Commissioner makes the following summarised observations: (a) The Appellant fails to particularise what aspect of section 45 of the Code of Practice, NMC did not comply with. None of the content in the section regarding advice and assistance appears to have any bearing on the issues in this appeal. The Commissioner does not consider that NMC breached its section 16 duty. (b) Internal reviews are not a statutory requirement under Part I FOIA, to which the Commissioner’s jurisdiction under section 50(1) FOIA is tied. The lateness of the internal review was not a matter the Commissioner could address by way of a Decision Notice. (c) The Decision Notice explicitly recorded NMC’s breach of section 1(1) FOIA by virtue of failing to confirm whether or not it held any information within scope of the Request. (d) It is clear that the NMC had conducted searches of its records so far as possible. It searched historical paper records (the ‘red books’), which were most likely to hold the requested information. In doing so, it only found the date of registration of the first nurse. In the absence of a PIN, the archive called DP2000 could not be searched for further information about the GNC register. (e) On appeal, the Commissioner has sought and obtained clarification from the NMC that the microfilm and microfiche records referred to are the same thing. He queried why those records could only be searched with a PIN number, instead of other means including manual search. NMC confirmed that the microfilm is stored on something called DP2000 which only stores by tape and film reference, and frame and roll number. It can only be searched by PIN rather than name. Only once the relevant tapes for that PIN number are found can the tapes be recalled and inspected on the microfiche reader. (f) It is clear the NMC is content to disclose the registration details of the nurses in question. There is no clear motive for the NMC to mislead the Commissioner. Due to the passage of time, the information requested is relatively historical in nature, harder to search and incomplete with the transfer of responsibility for nurse registrations. (g) The Commissioner was correct to rely on the NMC’s representations made during the investigation. In Councillor Jeremy Clyne v IC and London Borough of Lambeth EA/2011/0190, the Tribunal accepted at [23] that the Commissioner was entitled to accept at face value the response of a public authority where there was no evidence of an attempt to mislead the Commissioner or motive to withhold information actually in its possession. (h) The question for the Tribunal is not whether the NMC should hold the information, but whether it is does in fact hold the information, on the balance of probabilities. (i) The other matters raised are not relevant to the core issue and question for the Tribunal. Brief comments are provided but not repeated here in the interests of brevity. To the extent that is appropriate, the comments are encompassed within the Tribunal’s analysis below. Appellant’s Reply 28. The Appellant has provided a witness statement in reply addressing all three of her FOIA requests to NMC. In relation to 0091, the Appellant provides copies of correspondence within the accompanying Annex A. Legal Framework 29. Section 1(1) FOIA provides: “ Any person making a request for information to a public authority is entitled- (a) To be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) If that is the case, to have that information communicated to him .

30. Under section 1(3): “ Where a public authority- (a) reasonably requires further information in order to identify and locate the information requested, and (b) has informed the applicant of that requirement, the authority is not obliged to comply with subsection(1) unless it is supplied with that further information.” 31. By section 1(4) FOIA "information" in section 1(1) is "the information in question held at the time when the request is received,...", in this case 20 February 2024.

32. Section 16(1) FOIA imposes a duty upon a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it. Role of the Tribunal 33. The role of the Tribunal is governed by section 58 FOIA. This requires the Tribunal to consider whether the Commissioner’s Decision Notice is in accordance with the law, or, where the Commissioner’s decision involved an exercise of discretion, whether he should have exercised it differently. The Tribunal may review any finding of fact on which the Decision Notice was based (section 58(2)). This means that we may review all the evidence provided to us (even if that evidence was not before the Commissioner) and make our own decision on the merits.

34. The Appellant refers to the Information Commissioner v Bell [2014] UKUT 106 (AAC) , where at paragraph [22], the Upper Tribunal said: “ What is the nature of the appeal? The tribunal undertakes a complete reconsideration of the issues before the Commissioner. It is not limited to the evidence or submissions considered by the Commissioner. Nor is it bound by his findings of fact or the way he has exercised a discretion. In the convenient phrase that is often used to describe the role of the First-tier Tribunal, it stands in the shoes of the decision-maker.” 35. The Upper Tribunal in  NHS England v Information Commissioner and Dean [2019] UKUT 145 (ACC) reiterated that: " The First-tier Tribunal ‘exercises a full merits appellate jurisdiction and so stands in the shoes of the IC and decides which (if any) exemptions apply...” 36. It does not mean that we can consider matters falling outside the scope of the Request.

37. At paragraph [29] of Andrew Preston v (1) The Information Commissioner (2) Chief Constable of West Yorkshire Police [2022] UKUT 344 (AAC) , the UT confirmed that: “ When determining whether or not information is held, the Commissioner and Tribunal should apply the normal civil standard of proof - the balance of probabilities .” 38. On the burden of proof in Forstater v Information Commissioner and others [2023] UKUT 303 (AAC) the Upper Tribunal, at paragraph [40], said:- (2) the “ordinary presumption” is that it is for an appellant to prove their case. The burden will rest with the appellant except where statute expressly or impliedly provides otherwise: Khan v Custom and Excise Commissioners [2006] EWCA Civ 89 ; [2006] STC 1167 at [73.7]. Neither FOIA nor the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 contain any express provision about the burden of proof and neither by implication remove the ‘ordinary presumption’ either; and (3) however, the concept of the burden of proof is of secondary importance in tribunal proceedings which involve a full merits review, since to apply strict burdens of proof may prevent the tribunal from properly discharging its responsibility to decide the facts for itself and/or exercise any discretion afresh: ..." Main Issues 39. The main issues for the Tribunal to determine, as agreed at the hearing, are: • On the balance of the probabilities, did the NMC hold any information within the scope of the Request, which has not been divulged? • Did the NMC comply with its duties to provide advice and assistance? Evidence and submissions Appellant’s submissions 40. The main focus of the submissions concerned the second nurse. Submissions made by Professor Engelman at the hearing expanded upon the Appellant’s skeleton argument that runs to 11 pages.

41. In summary, it is submitted that the Commissioner erred on six main grounds.

42. First, by failing to provide reasons for dismissing the Appellant’s complaint under section 16 FOIA. It is claimed that the NMC entirely failed to advise the Appellant what “other means” were available to access the requested information.

43. The Appellant claims to have been misled, rather than advised, by the NMC saying it “may hold” the requested information, then relying upon a section 40(2) exemption and then dropping that exemption to admit to holding the ‘red books’. Professor Engelman carefully took the Tribunal through the sequence of events in the bundle. It was suggested that the wording of the NMC’s refusal of the Request led the Appellant to believe the information was held.

44. It is “tentatively suggested” that the NMC used descriptions of its archives as “microfilm”, “microfiche” and “DP2000” with intention to confuse the Commissioner and Appellant as to the type of register that might be searchable.

45. Professor Engelman pursued a further line of argument that in failing to dispose of the Appellant’s section 16 FOIA arguments, the Commissioner breached section 10 of the Tribunals and Inquiries Act 1992 . It was submitted that the Commissioner in issuing the Decision Notice was acting in a judicial role which mandates written or oral reasons. The Commissioner should also not have introduced a new reason as grounds for deciding that no further steps are required.

46. Secondly, the Appellant argues that the Commissioner failed to recognise that the NMC did not search its existing five archives whether adequately or at all. Reference is made to five NMC registers because, at the date of the Decision Notice, the NMC had disclosed the existence of (i) the online register (ii) the ‘red books’ (iii) microfilm (iv) microfiche (v) DP2000.

47. By the time of the hearing, further NMC registers are known to exist (i) the SPRINT-UK dataset (ii) the DAT tapes, and (iii) 7 look-up tables in .txt format. The Appellant refers to these as ‘undisclosed registers’.

48. Thirdly, the Appellant is critical of the quality of NMC’s initial analysis with reference to (i) its approach in advising the Appellant (ii) the wrongful adoption of the section 40(2) and (ii) failure to specify which provision of section 40(2) applied.

49. Fourthly, the Appellant submits that the scope of NMC’s search, even when under investigation by the ICO, was restricted to its ‘red books’. It did not search the other four registers.

50. Fifthly, the Appellant considers that the lack of rigor of the search is demonstrated by (i) failure to even search the other registers, and (ii) despite holding the PIN for the second nurse, the NMC failed to use it to search those registers. It is queried whether microfilms can be searched by PIN as they are analogue records.

51. The Appellant’s discovery of 8 separate items of 3 rd party data, including the second nurse’s SRN number, also led the Commissioner into error. In fact, the preliminary decision of the Commissioner to close the case occurred before there was chance to assess the impact of the 3 rd party data upon the search carried out by NMC. The Commissioner closed the investigation on 21 October 2024. It was only 4 days after he requested the NMC to conduct a further search following receipt of the 3 rd party data.

52. The Appellant asserts that the Commissioner drew entirely the wrong inference from the existence of the 3 rd party data. It demonstrated the inadequacy of the NMC search. It constituted “other matters” which should have affected the Commissioner’s assessment of the NMC search. The Appellant had also queried “highly contradictory” statements from the NMC’s responses e.g. the difference between microfilm/microfiche/DP2000.

53. The NMC provided the Commissioner with confused explanations of its registers. Notwithstanding the undisclosed registers, the Commissioner should have found a the NMC to demonstrate a real reluctance to conduct a proper search and possessed a motive to withhold information in its possession.

54. Sixthly, the Appellant argues that what happened after the Decision Notice is highly relevant to the search. During the course of this appeal, the Tribunal issued sequential Case Management Directions requiring the NMC to provide answers to 7 questions. When deadlines were not met, the Appellant initiated certification for contempt proceedings. The NMC responded on 11 November 2025. It admitted to not conducting a search of the microfilm or any digital searches. It admitted that if it held the information on the second nurse, it would be in its ‘red books’ and microfilm.

55. The NMC claimed “as far as it was aware” to have held no information on the second nurse not already disclosed on 9 September 2025. The Appellant considers it clearly wrong to state this when only 1 of 9 registers had been searched.

56. In oral submissions, Professor Engelman said there was confusion over the case for the PINs. The NMC had admitted it held the PIN but failed to conduct a search.

57. The Appellant further alleges continued evasiveness by NMC and accuses it of being either reckless in providing truthful answers about the search it conducted or lying. A screen grab from The National Archives is produced by the Appellant from which it can be deduced that at least “7 look-up tables in .txt format” were sent by NMC to The National Archives attached to an email on 31 May 2002. Unless deleted, that email would remain in the possession of the NMC.

58. The Appellant adds that the SPRINT UK dataset (owned and used by the United Kingdom Council for Nursing, Midwifery and Health Visiting (“UKCC”)) was passed to the NMC but it is unclear whether the NMC still holds its copy. The NMC avoided the Tribunal’s question of whether it received files from the CMB. NMC’s submissions 59. It was emphasised repeatedly by Mr Fitzsimons that the NMC apologises profusely to the Appellant for the significant delay she experienced from the outset in getting responses from the NMC and how the Request was handled. The NMC had learned a lot from this case.

60. Mr Fitzsimons said that there is a difference between what information should be recorded and released and what is actually recorded.

61. The NMC was wrong to rely on section 40(2) FOIA, and it makes no sense for it to do so. It apologises for that error, which was perpetuated at internal review stage.

62. When the NMC wrote to the Appellant on 7 October 2024, to confirm that it had altered its position following further review, it was intended to be helpful. This email and the subsequent email of 15 October 2024 show that the NMC wants to provide the information and will if it can.

63. Mr Fitzsimons described the PIN as a “red herring”. A request for the PIN was subject of a separate FOIA request and Decision Notice, not under appeal. The NMC had confirmed it does not hold the current style PIN for either nurse, but it does hold the historic GNC registration number for the first. This has been supplied.

64. It is important to note the answers given by the NMC to the Commissioner’s questions in email of 19 March 2025. The NMC confirmed that the microfilm and microfiche are the same thing. Microfilm is the record which is read by microfiche. It was explained that DP2000 is a legacy database from NMC’s predecessor. Without the PIN, a search cannot be conducted of DP2000.

65. Mr Fitzsimon confirmed that the NMC had “ exhausted the search in this matter within the scope of the Request ”.

66. It is submitted that straightforward answers have been given to the Tribunal’s straightforward questions.

67. The Appellant takes issue with the NMC’s use of the words “as far as it was aware” when saying that it held no information on one of the nurses. This is a question of whether information is held, and a public authority can never conduct a 100% exhaustive search. It is the balance of probabilities test.

68. NMC contests that it breached section 16 FOIA. Its approach was to be very clear to the Appellant that if she can find a PIN number a search can be conducted of the DP2000. It is not right to say that no search was conducted. The NMC did search its records once the section 50 complaint was made to the Commissioner.

69. The SPRINT database was all transferred to The National Archives. None of those archives that could, or might be, held by NMC are held by NMC. Discussion and Findings 70. Although numerous issues are raised by the Appellant, the crux of this appeal is whether or not the NMC holds the requested information. A separate issue arises in terms of whether the NMC fulfilled its duty to advise and assist the Appellant under section 16 FOIA. Any finding of a breach of section 16, does not affect the answer to the primary question on whether information is held that falls for determination under section 58 FOIA.

71. As a preliminary point, we address the Appellant’s arguments over the NMC’s record keeping obligations in the Code of Practice. FOIA does not involve an assessment of whether there could, or should have been, better record keeping but whether the information is actually held. We are reinforced in that view by the observation of Upper Tribunal Judge Wikeley in Commissioner of Police for the Metropolis v Information Commissioner Mackenzie [2014] UKUT 479 (AAC) who recorded that “ FOIA is not a means of reviewing a public authority’s recordkeeping and in some way testing it against practice ” (at [37]).

72. Moreover, at paragraph [30] of Preston , the Upper Tribunal said: 73. “ Importantly, in Clyne v IC and London Borough of Lambeth the Tribunal held that the ‘issue for the Tribunal is not what should have been recorded and retained but what was recorded and retained. ([38]). The Tribunal was satisfied that a gap in the public authority’s documentary records reflected ‘inconsistent and poor administrative practice’ but this did not amount to a breach of FOIA. Whether the requested information is held 74. The Appellant is critical of the nature and extent of searches conducted by the NMC.

75. It is undisputed by the parties that the test to be applied in deciding whether the requested information is held is the ‘balance of probabilities’ (as per Preston v Information Commissioner v West Yorkshire Police [2022] UKUT 344 (AAC) at [30]). This was the test applied by the Commissioner in his Decision Notice, as recorded at paragraphs 2 and 16 thereof. We find no sound basis to conclude that the Commissioner applied the wrong test.

76. There is consensus that the test for what constitutes a sufficient search for information within the scope of a request is as set out in the Information Tribunal decision of Bromley v Information Commissioner & the Environment Agency (EA/2006/0072): “ We think that its application requires us to consider a number of factors including the quality of the public authority's initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including, for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed.” [13]

77. As a principle, we agree that approach. Indeed, the Upper Tribunal in Preston quoted paragraph [13] of Bromley in full in considering whether the First-tier Tribunal had erred in finding that a public authority did not hold any other information. NMC’s response - “may” hold the information 78. During the hearing much emphasis was placed by Professor Engelman on the NMC’s response in its refusal notice of 27 February 2024 to say: “ I can advise that we may [emphasis added] hold the information requested however, we are unable to release this to you as it is exempt under section 40(2) of the FOI Act (personal information) .” 79. A point made by the Appellant in bringing the appeal is that use of the word ‘may’ failed to comply with section 1(1) FOIA, which entitles the requester to be informed whether it holds the requested information. This is a curious argument as the Commissioner did find in his Decision Notice that “ the NMC breached sections 1(1)(a) and 10(1) of FOIA as it didn’t confirm whether or not it held the requested information, or provide the information it did hold, within 20 working days ”. There is no flaw in the Decision Notice in this respect. Even if there were, it does not follow that the Decision was wrong to conclude that the information was not held.

80. The argument over the word ‘may’ in NMC’s response was developed by Professor Engelman during the hearing along different lines. It was suggested that the response indicated that the information was held and was, at best, contradictory, confusing and misleading. The NMC does not agree.

81. The response does not say that the NMC did hold the information but will not disclose it. The word “may” acknowledges the possibility that the requested information is held. The response could have been worded better and seemingly has caused confusion. What the NMC clearly meant was that the information may be held, and if it is, it is exempt from disclosure. Nevertheless, loose terminology (that has now been clarified) does not divulge the hiding of information or deliberate misleading, as suggested.

82. As it is, all parties agree that the NMC was wrong to rely upon section 40(2) FOIA. That did not constrain the Commissioner in considering other exemptions or whether the information was in fact held, nor does it constrain this Tribunal. In Information Commissioner v Malnick & ACOBA [2018] UKUT 72 (AAC) , the Upper Tribunal made clear, at paragraph [102] that “ the tribunal must consider everything necessary to answer the core question whether the authority has complied with the law, and so includes consideration of exemptions not previously relied on but which come into focus because the exemption relied upon has fallen away .” The PIN 83. Much is made by the Appellant of the PIN number, which the NMC says is needed to conduct a search of its DP2000 archive.

84. The NMC has clarified that references to ‘microfilm’ and ‘microfiche’ are one and the same. It may be surprising to the Appellant that the NMC’s record keeping necessitates the use of a PIN, but the Tribunal is satisfied that is so. The NMC clearly explained to the Commissioner by email of 19 March 2025 that the microfilm catalogue is stored on something called DP2000. It only stores by tape and film reference, and frame and roll number which can only be searched for by PIN rather than by name. Only once the relevant tapes for that PIN number are found can the tapes be recalled and inspected on the microfiche reader. We accept that explanation.

85. Turning to whether the PIN was held. That is a matter already resolved through a request made by the Appellant to the NMC on 9 April 2024. The Appellant sought the respective PINS for the nurses, or where those PINS might be accessed. In a Decision Notice from the Commissioner dated 17 December 2024, it is recorded at paragraph 20 that: “ the Commissioner is satisfied on the balance of probabilities NMC has now carried out adequate searches of all records, whether electronic or paper, and established that it does not hold nurse’s PINS for either of the two individuals named in the request ”. That Decision Notice is not under appeal.

86. Based upon that outcome alone, the Tribunal is satisfied on the balance of probabilities that the NMC has not located the PIN for the nurses to enable a search of the microfilm and that it has made adequate attempts to locate the PIN. Indeed, any issue on this point should have been raised by appeal against that decision and it cannot be pursued indirectly through these proceedings.

87. There may seem a certain irony in the NMC asking the Appellant if she has the PIN when that information had been the subject of a FOIA request made by herself. However, the PIN could have been located by the Appellant through other means. By asking the question, the NMC has not somehow demonstrated a failure to assist. Nor does it take matters forward in establishing the probability of whether the requested information is held.

88. When the Commissioner issued a preliminary conclusion letter on 2 January 2025, there was some conflation in the ‘preliminary view’ between this Request and the separate request for PIN numbers, which had already been decided. It indicates confusion between the cases, but it takes us no further forward in the core question of whether the requested information was held. The records and search 89. Even if there were defects in the reasoning of the Decision Notice, or any confusion over searches conducted, the Tribunal panel has had the benefit of more information and clarification. Answers from the NMC were given on 25 September 2025 and 11 November 2025 that were not before the Commissioner at the time of his Decision.

90. The answers of 25 September 2025 explain that the Request concerns registrants’ information held before 2001 (i.e. before NMC existed). The ‘red books’ were paper records passed to NMC from GNC in 1983 as legacy archives and records. It is explained that the microfilm records contain UKCC records for registrants from 1983-2001 and that PIN numbers are required to search for data. It was the UKCC that scanned the data onto the microfilm. The ‘red books’ are available for public inspection at the NMC offices. As the microfilm contain personal data, they can only be accessed by the Records & Archives Team of the NMC. The NMC had disclosed everything it could find for the first nurse. The NMC checked the GNC registers for information on the second nurse “and could not find anything”. Without a PIN the DP2000 catalogues could not be checked and it “cannot run any further searches on this individual”.

91. It was confirmed that the NMC does not hold The National Digital Archives of Datasets. They are held by The National Archives. The NMC reiterated on 11 November 2025 that it did not have the PIN, and it held no records (for the second nurse) on its current database.

92. Invariably, there will be limits to which a search can reasonably be conducted. Record keeping practices will change over time. We bear in mind that when the records were likely made, it was not a digital age. Over the passage of time there has also been a transfer of functions between regulatory bodies.

93. A screenshot is produced from The National Archives. It records that the dataset for SPRINT-UK (Single Professional Register and Index of Training) from 1984-2002 was owned and used by the UKCC. SPRINT-UK was the last dataset produced by the UKCC before passing on a new modified version to its successor body. The record confirms that the dataset was transferred to The National Archives by the NMC on 27 May 2002, held on two DAT tapes. Subsequently, seven additional lookup tables in .txt format were transferred, attached to an email sent on 31 May 2002. These are the records described by the Appellant as ‘undisclosed registers’.

94. Thus, there can be no doubt that all those particular records were transferred from the NMC to The National Archives. In this specific context, “transferred” means transferred in whole for archiving purposes. It is highly unlikely that transferred records would be retained by a public authority. It is also unlikely that a sent email would be retained over 20 years later. Indeed, the NMC say they simply do not have them.

95. The Tribunal accepts Mr Fitzsimons point that a 100% exhaustive search can never be conducted or guaranteed. Against that backdrop, it was not unreasonable for the NMC to include a caveat in its answer of 11 November 2025 that “ As far as we are aware we hold no additional information about [NAME] not disclosed in the response dated 9 September 2025 .” 96. As stated in Bromley , there can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority’s records. Provided a search has been undertaken sufficiently rigorously, and the information has still not come to light, it was to be regarded, on the balance of probabilities, as not held for the purposes of FOIA.

97. The Appellant’s application against the NMC for certification for contempt was heard the day after this appeal. It will be the subject of a separate Decision. The key question for us to decide on the Decision Notice is whether the Commissioner was wrong to conclude that the NMC does not, on the balance of probabilities, hold the requested information. The answer is not influenced by any non-compliance with Tribunal directions in this appeal. It is a separate matter.

98. Of course, we recognise that the answers to the Tribunal’s questions (which were directed to assist our decision) are relevant, and we refer to them above. Several questions were posed and answers have been given. We have also had opportunity to explore the issues in this appeal more fully at the hearing. It is apparent that there are not the number of datasets held by the NMC that the Appellant had understood.

99. At the hearing, the NMC’s position was made plain that it had conducted all searches that it reasonably can and, absent a PIN, it can search no further. 100. All things considered, we are satisfied on the balance of probabilities, that the NMC has conducted a sufficiently rigorous search and the requested information was not held. Advice and assistance 101. Professor Engleman accused the NMC of failing to mention other archives and providing information “in a drip feed manner”. Both points were denied by the NMC. It contests breaching its duty to assist the Appellant under section 16 FOIA. 102. Notably, the duty under section 16 is “ to provide advice and assistance, so far as it would be reasonable to expect the authority to do so .” It is a question of reasonableness. 103. Clearly, there were issues from the outset with the NMC erroneously relying upon the exemption in section 40(2) FOIA, which it maintained following internal review. There were delays in responses. The NMC accepts those errors and has apologised profusely for them. 104. It was not until the Appellant complained to the Commissioner that the NMC undertook a further review. In the NMC’s email of 7 October 2024 it referred to further enquiries with its Archives Officer and “ we are running further searches with a view to disclosing the requested information. We believe that the information requested will be visible in what we refer to as the ‘red books’ …” It is explained that these registers were published when they were ‘live’. Professor Engelman was informed that the Archives Officer has been asked to search the GNC records to obtain the information with a view to disclosing it. 105. The follow-up email of 15 October 2024 explains that a thorough search for any information pertaining to the Request had been conducted. Unfortunately, the search did not yield any additional information. One record was found and provided with the date of registration of the first nurse. No records at all were found for the second nurse. The email reiterates that if the NMC had been able to find any further records requested “ we would be happy to disclose following our reconsideration and I am sorry that what we were able to locate is minimal ”. 106. These are not the responses of a public authority seeking to obstruct, confuse or be unhelpful. Nor are they responses demonstrative of an authority being evasive. 107. The Appellant considers that there was a drip-feed of information. Having heard from both sides, we understand how the Appellant arrived at that view, but we do not find evidence of any deliberate intent to with-hold information. The NMC mistakenly thought that the requested information would be exempt from disclosure. When it realised, its error, it did conduct searches and made suggestions. It has demonstrated through its replies that it does wish to assist and has indeed done so. 108. We do not find any breach by the NMC of section 16 FOIA. Other Matters 109. Many of the Appellant’s submissions simply do not assist the Tribunal in the focus of our task under section 58 FOIA. 110. Section 46(1) FOI requires the Secretary of State to issue a code of practice providing guidance to relevant authorities (including public authorities) as to the practice which it would, in his opinion, be desirable for them to follow in connection with the keeping, management and destruction of their records. The Code of Practice, as referenced by the Appellant, is guidance only. It does not have the force of law. Thus, a failure to adhere to the Code does not equate to a breach of section 16 FOIA. 111. Criticism is levied at the Commissioner’s investigator for being keen to “close down” the request as soon as possible before there was chance to assess the information. To support this stance, the Tribunal was taken to the Commissioner’s letters of 2 October 2024 and 16 October 2024. We emphasise that the Tribunal is not investigating how the Commissioner chose to investigate the Appellant’s complaint and has no jurisdiction to do so. 112. As the Commissioner has said, there is no statutory requirement for an internal review. As such, the NMC’s failure to conduct an internal review does not affect the lawfulness of the Decision Notice and it is not a matter for this Decision. 113. Similarly, arguments that the Commissioner breached the Appellant’s rights to natural justice by failing to share his communications with the NMC are not for this Decision. We are not conducting an investigation into how the Commissioner procedurally deals with complaints. 114. The Tribunals and Inquiries Act 1992 argument is not well made. It is section 50 FOIA that is the statutory provision which sets the requirements of a decision notice. 115. At paragraph 14 of the Decision Notice, the Commissioner quoted section 1(1) FOIA. He proceeded to explain how the right to information does not extend to asking questions or for explanations or clarification or to debate the content of information. The paragraph ends “ Essentially, public authorities are not obliged to ‘create’ new recorded information in order to comply with a request .” Paragraph 15 makes general points that set the scene for the reasons that follow. It does not reveal a mistaken belief by the Commissioner that the Appellant was seeking the creation of new recorded information, rather than existing databases to be searched. 116. Even if the Commissioner had misunderstood or made a premature decision, of which there is insufficient evidence, the Tribunal is alive to all points made by the Appellant and has considered the position de novo . We do not need to find error in the Decision Notice before doing so. 117. Whilst the Appellant has sought an enforcement notice by way of remedy in this appeal, it was conceded during the hearing that this is not a remedy available to the Tribunal under section 52 FOIA. It is the Commissioner who may serve an enforcement notice. Conclusion 118. For the reasons given, th e Tribunal finds that, on the balance of probabilities, the information requested by the Appellant was not held by the NMC at the time of the Request. Accordingly, the Commissioner’s Decision Notice was correct in the conclusion reached. Signed: Judge Saward Date: 25 June 2026