Neutral citation number: [2025] UKFTT 796 (GRC)
Case Reference: FT/EA/2024/0385
First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Heard by Cloud Video Platform
Heard on: 17th March 2025
Decision given on: 30 June 2025
Before
JUDGE SANGER
MEMBER GRIMLEY EVANS
MEMBER TAYLOR
Between
JOHN MITCHELL
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
Representation:
For the Appellant: John Mitchell appeared and was not legally represented.
For the Respondent: did not appear.
Decision: The appeal is dismissed.
REASONS
1. This is an appeal brought by John Mitchell against Decision Notice number IC-320383-R1P1 ("the DN") issued by the Information Commissioner ("the Commissioner") on 19th August 2024.
2. The DN referred to a request made by Mr Mitchell on 17th February 2024 to Dr Philip Rowland, Dr Peter Dunne, Dr Alexis Tanner, Dr Julian Miles and Dr Alice Cook, who were, at the material time, the partners of Peverell Park Surgery in Plymouth. Collectively they will be referred to as "the surgery".
3. The appeal is brought under the Freedom of Information Act 2000 ("FOIA"). References to "the Act" can be assumed to be reference to that Act unless otherwise stated.
The Law
4. The relevant provisions of FOIA are as follows:
Section 1: General right of access to information held by public authorities.
(1) 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.
Section 58: Determination of appeals
(1) If on an appeal under section 57 the Tribunal considers-
(a) that the notice against which the appeal is brought is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.
5. Under s58 FOIA the right of appeal to the First-tier Tribunal involves a full merits consideration of whether, on the facts and the law, the public authority's response to the Request is in accordance with Part 1 of FOIA (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29, at paragraphs [45]-[46] and [90]). The Tribunal has jurisdiction to decide, on the merits, whether the Commissioner's decision is in accordance with the law.
The background
6. On 17th February 2024, the Appellant wrote to the surgery, seeking information in the following terms:
Please provide the surgery's annual Cancer statistics from 2014 to 2023
To include the number of Patients that have suffered from gallbladder, liver, pancreas, bile duct, biliary system cancers.
Please provide the surgery's annual statistics from 2014 to 2023 for
Asthma
COPD
Chest infections
RSV
Still births
Stroke
Heart disease +conditions
Covid 19
The number of registered patients at the surgery for each year from 2014 to 2023
The surgery's relevant on line links to the data I have requested.
7. On 12th March 2024 the surgery responded to say that it had taken advice and determined that the information was withheld pursuant to s40 (personal information).
8. The same day, the Appellant wrote to the surgery in the following terms:
A close-up of a document
AI-generated content may be incorrect.
9. On 19th March 2024, the Appellant sent a further email:
10. The same day an email was sent to the Appellant, informing him that staff were focused on patient safety and as such were not in a position to prioritise his request.
11. On 5th April 2024 the Appellant contacted the Commissioner, inviting him to remind the surgery of its statutory obligation.
12. On 24th April 2024 the Commissioner contacted the surgery by letter, although the copy in the bundle was mistakenly given the date of 17th October 2024. The Commissioner stated that, in his view, the surgery's response was not compliant with the Act because it did not:
a. state whether or not the information is held in recorded form,
b. supply the applicant with a copy of the information,
c. issue a refusal notice which complies with the legislation.
13. The surgery was directed to treat the Appellant's email correspondence of 12th March 2024 as a request for an internal review and to provide an outcome to the Appellant and the Commissioner within 10 working days.
14. On 7th May 2024, the surgery issued a new response. It sent the Appellant a spreadsheet which contained some of the information requested and advised that the local Integrated cancer Board would hold further information regarding cancer statistics.
15. The Appellant responded, inviting the surgery to separate the information relating to patients at its sister site, UMC, and provide only information relating to patients of the surgery. He also invited the surgery to provide bile duct cancer information which he said was missing.
16. On the evening of 7th May 2024 the surgery emailed the Commissioner for advice. Relevant extracts from the email are as follows:
Please advise on how we respond
We have provided what we are able, we have one surgery L code and are not able to divide down to individual sites unless we mainly [sic] review all records one by one which is not possible
The task seems to be never ending, I have provided what we have on record and now he us [sic] saying he wants more.
I will review bike [sic] duct cancers again but it's not a cancer we code so not sure we can provide this information.
Please can you advise how best to answer. We have done our best to meet his requests, we simply do not have this information available to provide. Our systems are not as advanced as he thinks, we are a small independent GP surgery, with out dated clinical systems not a hospital with good technology.
17. There is no record of whether the Commissioner responded to that email.
18. On 28th May 2024 the Appellant again contacted the Commissioner, copying his correspondence with the surgery and complaining that the information that had been provided appeared to link the two surgeries together. He submitted that the Commissioner, rather than requesting a valid response, had assisted the surgery by instead asking them to conduct an internal review. He asked the Commissioner to contact the surgery again to notify them of his dissatisfaction.
19. On 25th June 2024, the Appellant wrote to the Commissioner, complaining that he had not received a response "within the ICO guideline". He invited the Commissioner to direct the surgery to respond to his complaint.
20. On 17th July 2024 the surgery sent an email to the Appellant, confirming that the information provided was accurate. The surgery stated that it was unable to separate the data for the two sites as data was recorded under the same clinical code. The surgery suggested that the Appellant seek further information from Public Health (via Plymouth.gov.uk).
21. On 17th July at 16:53 the Appellant sent an email to the Commissioner. He asked the Commissioner to continue with his complaint because he was not satisfied with the response received earlier that day. He wrote:
The original requested data has still not been supplied , if this response is the truth then
Why has it not been mentioned before , during previous communication.
i.e. When I first requested the information or when the statistical data was provided.
The PA should have stated this when confirming that the information is held.
They have failed to provide the requested information within the statutory timescale
They have failed to conduct an internal review within the best practise time guidelines
Please contact them again on my behalf in order for them to release the requested info.
22. On 18th July 2024 the Commissioner opened an investigation and requested information from the surgery.
23. On 19th July 2024 the Appellant sent an email to the Commissioner setting out his concerns.
24. On 8th August 2024 the surgery responded to the Commissioner's investigation. They stated that:
a. They use a system called Ardens software to extract patient data from its systems. There is a suite of searches that are available for use by surgeries but Ardens sets up searches for NHS England and public health use, not at the request of individual surgeries;
b. The available Ardens searches were used in response to the Appellant's request but much of the data requested was not available;
c. With over 25,000 patients' data being held in the system, they were not able to manually search the data;
d. Cancer is coded by secondary care so they do not have an obligation to code cancers; the surgery does not have access to secondary care data;
e. Still births are not coded at all in general practice so cannot be searched;
f. So far as holding data goes, the surgery and its sister site are a single site and one clinical system so far as computer records are concerned;
g. The surgery is not informed of all respiratory infections, cancer diagnoses, still births or covid infections by secondary care;
h. None of the data requested was destroyed; it simply never existed in the format requested;
i. Systems in use were Emis (historic) and S1 (current).
The Decision Notice
25. A DN was issued by the Commissioner on 19th August 2024.
26. The Commissioner's decision was that, on the balance of probabilities, the surgery held no further information within the scope of the request. No further steps were required of the surgery.
27. The Commissioner accepted that the surgery had carried out sufficient searches of its systems and that the further information was not held, within the scope of the request.
28. The Commissioner did note, however, that the surgery had breached s10(1) by failing to provide a response within the statutory limit of 20 working days.
The appeal
29. An appeal form was submitted on 21st August 2024. In his appeal form, the Appellant made the following points:
a. The surgery has deliberately misled the ICO and does hold the requested information;
b. The surgery had no intention of supplying the requested information and had to be reminded of its responsibilities under the Act twice;
c. Peverell Park Surgery and University Medical Centre are two separate surgeries and the suggestion that the surgery was not able to separate the statistics by surgery was not accepted; these are two physically separate surgeries with separate computer systems which may be linked to access information but equipment and servers are separate;
d. The expert was not provided with a copy of the original request and did not access the on-site medical records held at the surgery;
e. It is not accepted that a further search took place after the initial release of information as no further information was provided (para 16 of the DN);
f. It is not accepted that the requested information regarding cancers and still births was not available because that information is either held by secondary care or not coded in general practice. Other practices have been able to provide the Appellant with information of this nature. The Appellant submits that further enquiry ought to have been made by the Commissioner;
g. It is not accepted that the surgery is often not informed by secondary care about chest infections, Covid infections or still births within a hospital setting and the Appellant submits that further enquiry ought to have been made by the Commissioner. Other surgeries have been able to provide the requested information.
The Commissioner's response
30. On 5th November 2024, the Commissioner submitted that the appeal should be dismissed and made the following points in support of his position:
a. The DN is relied upon;
b. It is not the Commissioner's role, or the Tribunal's role, to criticise how Public Authorities hold information; The Commissioner accepted the explanation put forward by the Public Authority which was that it was not able to separate the data out into the categories requested by the Appellant: on the balance of probabilities the surgery does not hold further recorded information within the scope of the appeal;
c. The Commissioner was entitled to accept, at face value, the explanation offered by the surgery in respect of the searches that had been undertaken and, to the extent that the appeal focuses on how the Commissioner conducted its investigation, that is not within the jurisdiction of the Tribunal: the Tribunal can only consider whether the Commissioner was correct to conclude that, on the balance of probabilities, the requested information was not held;
d. Information received from other surgeries has no bearing on the decision in relation to this surgery: they were separate requests and just because one surgery has responded in one way that does not mean that other surgeries are required to answer in the same vein.
Evidence
31. The panel read, and took account of, a 71 page open bundle of papers as well as further information submitted by the Appellant in advance of the hearing.
32. The panel also took account of further evidence submitted to the GRC by the Public Authority on 16th April 2025 and forwarded to the parties on 7th May 2025.
33. The panel heard from the Appellant, who attended the hearing by telephone.
The hearing
34. At the hearing, the Appellant attended by telephone. The Respondent did not attend, having indicated that it did not intend to do so.
35. The Appellant set out his case. He confirmed that the following information remained outstanding:
a. The information relating to bile duct cancer;
b. The information for the surgery itself, separated and distinct from the information from its sister surgery.
36. The Appellant did not accept that the surgery was not able to isolate data, as it had stated in its response to the request. He stated that other surgeries, which he presumed to be operating under the same data collection system, had been able to separate data and had provided him with full responses to his request.
37. The Appellant contended that the surgery had access to data held by the Devon Integrated Care Board and therefore they did have access to the information on secondary care. He did not accept, based on personal experience, that the surgery was not always updated by secondary care.
Request for further evidence
38. Further to the hearing, it was determined that it would assist the Tribunal to have further information from the surgery. A Case Management Order was therefore issued, copying the open bundle and requiring answers to a number of questions, with a view to clarifying the evidence already received and considered.
39. The Appellant wrote to the Tribunal on 14th April 2025, further to receipt of the CMO, setting out his discontent with the fact that this information had not been sought earlier. He set out his view that the Public Authority was not being truthful and his concern that the Tribunal, by its order, was "illegally trying to further assist the surgery to withhold the requested information". The Appellant requested an immediate and full response, which was not provided in correspondence but is now provided in the form of this decision.
40. The Tribunal wishes it to be recorded that the hearing on 17th March was the first opportunity at which the matter was given full panel consideration. Prior consideration of the file is purely administrative. It is not uncommon for additional evidence to be requested after oral evidence has been taken. In this case, the panel who considered the appeal, was agreed that we did not have enough information before us to make a decision.
41. In accordance with the Overriding Objective, therefore, the panel had agreed that it was just to obtain evidence prior to making a decision. While there is necessarily some delay built into the system, it is right that the Tribunal is able to consider the relevant information when making its decision. The Public Authority was not legally represented and was clear, in its correspondence with the Respondent and with Tribunal, that it was not experienced in dealing with FOIA requests.
42. A response, in the form of a witness statement, was received and considered. It was shared with the Appellant.
Discussion and conclusions
43. The Appellant had been provided with information in response to the request, albeit the surgery to whom he made the request had not separated its own data from that of its sister site.
44. The Tribunal did not find, on the balance of probabilities, that the surgery had been dishonest or that it had deliberately withheld information from the Appellant.
45. The evidence of the surgery, which was accepted by the Respondent in determining the decision notice, was that data for both sites was stored under a single code. This meant that it was held as the combined data for two surgeries and the surgery had no means of separating the data so that only that which related to one of those sites was provided.
46. This was supported by the further information which made it clear that the searches had been carried out using the best endeavours of the surgery and that it was simply not possible to separate the data in the way in which it was requested.
47. It was clear from the witness statement that the surgery had reached out to a peer organisation with greater experience of using the same systems, to Ardens themselves and to the local Integrated Care Board for guidance in applying searches to the data.
48. In theory, the data could possibly be separated if a new search was developed within the Ardens system.
49. It is the view of the Tribunal, however, that to do so would take the surgery outside the scope of what is required of it under the Act. Building a bespoke search to "create" the data is an expert task. According to the earlier evidence this would not, in any event, produce all the data requested, because (a) secondary care data is not available to the surgery and that (b) not all secondary care diagnoses for its patients are passed on to the surgery.
50. The surgery has provided the Appellant with what it can, within the scope of the request.
51. The conclusion of the panel, therefore, was that the information is not held. We took the view that, under FOIA, a declaration that the information is not held in the format requested is a declaration that the information is not held. s1(1) reads as follows (emphasis added):
Any person making a request for information to a public authority is entitled to be informed in writing by the public authority whether it holds information of the description specified in the request and, if that is the case, to have that information communicated to him.
52. In the ICO's guidance, this is expanded as follows:
FOIA only applies to information that a public authority already holds in recorded form at the time of a request.
If you don't hold a particular piece of information that someone has asked for, you don't have to create it. Nor are you required to ask a third party for the information, unless they hold it on your behalf.
53. The Tribunal accepts the evidence of the surgery that information of the description specified was not held. The surgery does not hold data for the single site of Peverell Park Surgery in relation to the request for information as it was framed.
54. The surgery has made extensive efforts, so far as we can discern, to obtain the information requested and has, in fact, gone beyond what was required in order to try and ascertain whether it could provide the data in a different way.
55. The Tribunal found that the requested information was not held and the appeal is dismissed accordingly.
Signed: Judge Sanger
Date: 27 June 2025