Understanding The Cunliffe v Information Commissioner Case: A FOIA Victory For Transparency In NHS Recruitment Data

The recent decision in Cunliffe v Information Commissioner [2024] UKFTT 879 (GRC) is a significant milestone for public transparency and data accessibility within the UK’s National Health Service (NHS).

This case underscores the obligations of public authorities, particularly NHS Trusts, to provide access to requested data under the Freedom of Information Act 2000 (FOIA), even amid claims of logistical and technical barriers. The ruling spotlights the balance between data transparency for public interest research and operational constraints, shedding light on the Tribunal’s stance on FOIA exemptions and costs of compliance.

The Cunliffe v Information Commissioner [2024]

Background

Mrs Cunliffe, the appellant, filed Freedom of Information (FOI) requests with four NHS Trusts seeking data on recruitment by ethnicity across various staff categories, specifically for applicants, shortlisted candidates, and offers extended.

Her request aimed to analyse recruitment trends in relation to ethnicity, a crucial component of her broader research on equality in hiring within the NHS. However, each Trust, citing logistical and data integrity challenges with their TRAC applicant tracking systems, declined her request under section 12 of FOIA, which exempts public authorities from compliance if costs exceed a certain limit. Cunliffe subsequently complained to the Information Commissioner, who sided with the NHS Trusts. Dissatisfied, Cunliffe further appealed to the First-tier Tribunal seeking judicial intervention.

The appellant’s argument

Cunliffe argued that the NHS Trusts misrepresented the operational functionality of the TRAC system. Drawing on her experience as an HR professional familiar with TRAC, she contended that the data could be generated relatively quickly without surpassing the cost threshold. She also cited instances of previous responses from other Trusts where similar data was provided in a timely manner. Her argument was bolstered by her submission of WRES data and other documentation, which indicated the feasibility of producing accurate data sets for research purposes.

The NHS Trusts’ justifications

Each Trust defended its decision by highlighting the perceived limitations of the TRAC system. They cited a lack of capacity to produce complete, reliable data within the constraints of the FOIA cost exemption.

The TRAC system, they claimed, required extensive manual extraction, review, and validation to meet Cunliffe’s specifications. The Trusts argued that discrepancies between TRAC and the NHS’s Electronic Staff Record (ESR) system compounded the challenge, making it necessary to manually disaggregate data, which could result in substantial labour hours and significant costs.

Further, they asserted that the data retention policy of 400 days within TRAC limited their ability to retrieve older data without excessive burden. Based on these logistical barriers, the NHS Trusts maintained that fulfilling Cunliffe’s request would far exceed FOIA’s cost exemption, estimated at £450 (18 hours of labour).

The Tribunal’s analysis

The Tribunal found the Trusts’ reasoning unpersuasive. It observed that whilst TRAC’s data might have limitations, these should not exempt the Trusts from sharing whatever accurate data they could reasonably provide.

The Tribunal found Cunliffe’s arguments credible and grounded in expertise, noting that thirteen other Trusts successfully fulfilled similar requests, often within hours, without excessive expenditure. This reality, the Tribunal argued, undermined the claims that TRAC’s alleged shortcomings prevented compliance.

Additionally, the Tribunal was critical of the lack of engagement from the NHS Trusts. They neither appeared to present their case at the hearing nor provided evidence challenging Cunliffe’s claims.

The absence of independent evidence or expert testimony from TRAC’s administrators weakened their defence. Moreover, the Tribunal was concerned by the shifting rationale of the Trusts—from citing section 22 (intention to publish) to section 12 (cost limitation) of FOIA—which suggested an inconsistency in their justification.

Key legal findings

The Tribunal emphasised several legal principles regarding FOIA compliance costs:

Outcome and implications

The Tribunal ruled in Cunliffe’s favour, instructing the NHS Trusts to comply with her request within 35 days. While recognising that some data might no longer be available due to retention limitations, the Tribunal maintained that any remaining accessible data should be provided to Cunliffe.

This ruling establishes a precedent emphasising that public bodies must substantiate FOIA cost claims with specific evidence. The Tribunal’s decision also signals that public authorities, especially those as significant as the NHS, bear a responsibility to uphold transparency in matters of public interest, particularly around equality and discrimination.

By underscoring the NHS Trusts’ duties, the Tribunal reinforces FOIA’s intent: to enable citizens to access public information without facing disproportionate barriers.

Comment

Cunliffe v Information Commissioner highlights a fundamental balance between operational capacity and the need for transparency in the public sector. The ruling affirms that cost exemptions cannot be used to obscure potentially important data from public view, especially when such information can shed light on issues of systemic inequality.

For researchers, advocates, and the public, this decision is a victory, reinforcing their right to scrutinise and understand how public institutions operate in relation to equity and inclusivity. Moving forward, public authorities may need to adopt clearer, more accountable approaches to data requests, ensuring that they remain aligned with both the spirit and letter of FOIA.