Ronald Esmond Hamilton v Information Commissioner

Background to Appeal

1. This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 11 July 2025 (IC-358427-M0S0, the “Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns information about clarification of a statement in a service specification document requested from NHS England (“NHSE”).

2. The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).

3. On 19 September 2024, the Appellant wrote to NHSE and requested the following information (the “Request”): “The 2013 contract states: ‘Each individual surgeon must perform more than five radical prostatectomies or cystectomies.’ In line with the NICE guidance of 2002, I assume that the intention was that prostate surgeons must perform more than five radical prostatectomies and bladder surgeons must perform more than five radical cystectomies. Any other interpretation would mean that a surgeon could perform five cystectomies and then be ‘qualified’ to complete a single prostatectomy. Would it be possible to provide clarification of on this point?”

4. The Request relates to wording in the 2013/14 NHS standard contract for cancer: specialised kidney, bladder and prostate cancer services (adult). Section B Part 1 contains service specifications (the “2013 service specification”). This contains the wording – “ Each individual surgeon must perform more than five radical prostatectomies or cystectomies per annum…The combined total of radical prostatectomies and/or total cystectomies, recorded and performed under the care of the multidisciplinary team, should be 50 or more .”

5. NHSE responded on 20 December 2024 and said they did not hold the requested information – “ NHS England does not hold any recorded information in relation to the interpretation or clarification of the 2013 service specification. Unfortunately, on this occasion we are unable to confirm who will hold this information .”

6. The Appellant requested an internal review on 31 December 2024. NHSE responded on 20 January 2025. They said that no further information was held, and they had carried out reasonable searches.

7. The Appellant complained to the Commissioner on 21 January 2025. The Commissioner decided that NHSE was correct to state it does not hold the requested information. The Commissioner had asked NHSE for further information about searches and discussions with relevant staff, and repeated this information in the decision. The Commissioner had also asked NHSE about a document provided by the Appellant, the Manual for Cancer Services – Urology, and decided that this did not provide the clarification sought by the Appellant because it predated NHSE’s formation and the 2013 service specification. On the basis of the explanations provided by NHSE, the Commissioner was satisfied that, on the balance of probabilities, the information requested is not held. The Appeal and Responses

8. The Appellant appealed on 31 July 2025. His grounds of appeal are: a. Inadequate searches . In particular, the search was restricted to the specialist commissioning team of NHSE, they do not explain what happened to the records of previous clinical reference groups and why they were not considered, and the response of the previous clinical reference group chair that no recorded information would be held is not credible. b. Inadequate records management . There have been numerous clinical reference groups, and NHSE has not explained how its records management processes were not robust enough to cope with staff changes. c. An existing document provides the requested information . The Appellant says that the Manual for Cancer Services – Urology was included in the evidence base of the 2013 service specification, and so can be seen as supporting or clarifying this document. It was also implemented by NHS Trusts in England. There is also a second document, “Improving Outcomes Guidance: Urological Cancer – NICE (2002)”, which the Appellant says must reflect what the guidance in the 2013 service specification document is intended to achieve. The Appellant also makes a number of points about the Commissioner’s decision being wrong because NHSE has failed to clarify the meaning of the 2013 service specification. This issue is not something that this Tribunal can deal with, as explained further below.

9. The Commissioner’s response maintains that the Decision Notice was correct. The Commissioner submits that he was correct to rely upon the representations of NHSE made to him during the course of his investigation, and he did not consider NHSE to have any motive to mislead the Commissioner or Tribunal. Given the passage of time and the changes to NHSE’s formation, he remains satisfied that, on the balance of probabilities, the requested information is not held.

10. The Appellant submitted a reply which we address in the discussion below.

11. NHSE declined to be joined as a party to the proceedings. NHSE submitted a position statement which maintains its position that the requested information is not held, and says the Appellant was seeking outcomes that the Tribunal cannot award. Applicable law

12. The relevant provisions of FOIA are as follows. 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. …. (4) The information— (a) in respect of which the applicant is to be informed under subsection (1)(a), or (b) which is to be communicated under subsection (1)(b), is the information in question held at the time when the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated under subsection (1)(b), being an amendment or deletion that would have been made regardless of the receipt of the request. …… 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.

13. In determining whether or not information is held, the standard of proof is the balance of probabilities. It is rarely possible to be certain that information relevant to a FOIA request is not held somewhere in a large public authority’s records. The Tribunal should look at all of the circumstances of the case, including evidence about the public authority’s record-keeping systems and the searches that have been conducted for the information, in order to determine whether on the balance of probabilities further information is held by the public authority. In accordance with section 1(4), the information is that held at the time the request is received.

14. A relevant and helpful decision is that of the First-Tier Tribunal in Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072). In discussing the application of the balance of probabilities test, the Tribunal stated that, “ 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 .” This decision was cited by the Upper Tribunal in Andrew Preston v Information Commissioner & Chief Constable of West Yorkshire Police [2022] UKUT 344, which also confirmed the principle that the First-Tier Tribunal has consistently applied the balance of probabilities when approaching this question. Issues and evidence

15. The issue is whether, on the balance of probabilities, NHSE were correct to say that they did not hold any information within the scope of the Request. This would be information which clarifies the intended meaning of the quoted statement from the 2013 service specification.

16. In his appeal grounds, the Appellant sets out the outcome he is seeking. His preferred outcome is “ the First-tier Tribunal should allow the appeal and substitute a notice that requires NHS England to issue written confirmation to the complainant that the statement in the 2013 service specification entitled “2013/14 NHS Standard Contract For Cancer: Specialised Kidney, Bladder And Prostate Cancer Services (Adult)”, that “Each individual surgeon must perform more than five radical prostatectomies or cystectomies per annum.” should be construed in accordance with the documents included in the “Evidence base” of the service specification ”. Alternatively, he asks that the Tribunal “ set aside the ICO decision and substitute a notice that requires the Information Commissioner’s Office to consider the request for in the light of the information presented to the First-tier Tribunal ”.

17. These are not outcomes that the Tribunal can provide. We note that the Appellant has provided a response to NHSE’s position statement which withdrew his request for the Tribunal to refer the matter back to the Commissioner. In relation to the Appellant’s preferred outcome, the Tribunal cannot require NHSE to provide written confirmation or clarification about the statement in the 2013 service specification. This falls outside the scope of FOIA, which is about disclosure of information held by a public authority. FOIA only requires a public authority to disclose information that it already holds. The Tribunal can consider whether NHSE holds recorded information which is within the scope of the Request. The Tribunal cannot require NHSE to provide new clarification or an explanation about the meaning of the quoted statement, or require them to provide written confirmation about how that statement should be interpreted in light of other documents.

18. By way of evidence and submissions we had an agreed bundle of open documents, which we have read and taken into account in making our decision. Discussion and Conclusions

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

20. Inadequate searches . The Appellant complains that the search was restricted to the specialist commissioning team of NHSE, and they do not explain what happened to the records of previous clinical reference groups and why they were not considered.

21. We have considered whether NHSE has conducted a reasonable search for the requested information. We have taken into account what the Appellant is actually asking for. Although NHSE treated this as a request for recorded information, the original request is actually asking for “clarification” of the meaning of a specific paragraph in a document. NHSE might hold information that provides this clarification, but it is relatively unlikely that there is another specific document which contains a statement clarifying this point. It is therefore difficult to know exactly which records might contain this information.

22. NHSE’s response to the Commissioner explains that the 2013 service specification was developed at pace when NHS England was forming. The current specialist commissioning team does not hold any information because it predates this team joining NHSE. Two previous clinical reference groups may have been involved in the original drafting of the specification, but NHSE says that they have both been disbanded with no members left working at NHSE. In these circumstances, it is difficult to see where else NHSE could search for information within the scope of the Request, bearing in mind this relates to events more than 10 years ago. The Appellant questions what has happened to the records of previous clinical reference groups, but a public authority has no obligations under FOIA to keep particular records. Even if these records had existed, it is not at all certain that they would contain the information the Appellant has requested.

23. The Appellant also says that the response of the previous clinical reference group chair that no recorded information would be held is not credible. We note that NHSE took the step of contacting this individual, who no longer works for them, to “go the extra mile”. This goes beyond what would normally be expected of a public authority. The Appellant has also suggested the ex-chair could have been asked how the requirement could be interpreted, but this would fall outside FOIA as it would not be disclosure of information already held by NHSE.

24. We have considered the detail in the Appellant’s appeal grounds about why he believes there may be additional records, which includes because there were later reviews of the 2013 service specifications and proposals for procedure volume thresholds. We do not consider that work done later to clarify volume thresholds would fall within the scope of the Request. The Appellant has asked for clarification of the intention behind the statement in the 2013 document, meaning what was intended at that time. Later reviews and clarifications would not be information about what was intended in 2013.

25. Looked at overall, we find that NHSE’s searches for the requested information were reasonable and sufficiently rigorous in all the circumstances, taking into account the nature of the Request, the fact it is not likely there would be retained recorded information that covers exactly what the Appellant was asking for, and the history of NHSE. Looking at the Request, we question whether it was actually asking for recorded information under FOIA. It may have been possible for NHSE to ask for clarification from the Appellant, or to provide advice and assistance, in order to be clear on whether this was actually a request under FOIA or something else.

26. Inadequate records management . This is not something that the Tribunal can address. A public authority is not obliged under FOIA to keep accurate or complete records, or to keep its records in an organised manner – the obligation is simply to provide the information that it actually holds at the time of the request, not information that it should have held. We note that the Appellant’s reply confirms that he is not asking NHSE to improve their record keeping.

27. An existing document provides the requested information. The Appellant refers to the “evidence base” for the service specification, particularly the 2008 Manual for Cancer Services – Urology. NHSE says this is not within scope of the Request as it is an older document. We agree with this analysis. Although it is part of the evidence base for the 2013 service specification, it is a prior document rather than a contemporaneous record of what the 2013 wording was intended to mean. It might assist someone who was trying to clarify what the 2013 document meant (because it contains its own version of required procedure volumes), but it is not a definitive statement about what the 2013 document meant. In addition, even if this document is within the scope of the Request, NHSE confirmed to the Commissioner that they held this document during the investigation, and it is already publicly accessible. There is no need for this Tribunal to order it to be disclosed because the Appellant already has the document. The same analysis applies to the document “Improving Outcomes Guidance: Urological Cancer – NICE (2002)”.

28. To be clear, we cannot require NHSE to say whether the approach in the 2008 document is or is not the right way to interpret the 2013 service specification. We can only order disclosure of recorded information within scope of the Request if we find, on the balance of probabilities, that this information is held by NHSE.

29. Having considered all the circumstances, we find on the balance of probabilities that NHSE were correct to say that they did not hold any information within the scope of the Request. This is on the basis that the Request is for information which clarifies the intended meaning of the quoted statement from the 2013 service specification, and having considered the searches by NHSE and the likelihood that this very specific information would be held at the time of the Request.

30. We dismiss the appeal.