The NMC, an FOI and a curious answer

Apologies for a long letter but it was necessary. 

On October 3rd 2025 I made a Freedom of Information (FOI) request to the Nursing and Midwifery Council (NMC) relating to the NMC’s decision to decommission Ijeoma Omambala KC and to instead commission Victoria Butler-Cole KC, David Hopkins, and Lucy McLynn to conclude an investigation into allegations made by a whistleblower.  My request was for information the NMC holds and would be easily accessible. After a long delay taking their response time well over the statutory maximum, I received a reply.

In essence the reply said the NMC would not provide the information requested on the grounds that a similar request has already been made and they were therefore entitled to draw the conclusion I was acting in collusion with someone else and were therefore able to refuse my request.

I expressed my surprise on two grounds, 

Firstly, I didn’t believe that the fact that a similar request had apparently been made should disqualify my FOI request – I had not seen the reply to this apparently similar request and, indeed, if one had been made there was no extra cost in sharing it with me.

Secondly, the letter referred me directly to the Information Commissioner’s Officer and made no reference to my right to request an internal review by the NMC.

I subsequently received an apology saying I could, in fact, request a review of the decision to refuse my FOI request but my actual request remained refused.

I am publishing the last letter from the NMC and my reply as it seems to raise wider issues about governance, culture and transparency within an important statutory regulator whose leaders say is busy improving its transparency, governance and culture after the scathing RISE review of 2024. 

I have redacted the name of the NMC manager who sent the letter and will share the future outcome of the review request.

________________________________________________________________________

27th January 2026

Dear Roger,

Thank you for your email of 19 January. I will address your two questions in turn:

Firstly, our letter of 8 January confirmed the basis on which we made our decision about the information you requested. I am afraid we cannot provide details about our responses to other individuals.

Secondly, I apologise for the fact that we did not invite you to submit an internal review of this request as we should have done. While you have the right to approach the ICO at any time, our internal review process is an opportunity to challenge our response should you wish to do so. Please do come back to me at this address should you wish to request an internal review of our response.

With kind regards,

Office of the Chair and Chief Executive

0207 681 5830

Nursing and Midwifery Council

________________________________________________________________

30th January 2026

Request for internal review of the initial NMC response to my FOI request NMC-37652-D3J1B7

Thank you for your email of 23 January 2023 confirming that I can request an internal review of the NMC’s Freedom of Information response dated 8 January 2026 (reference NMC-37652-D3J1B7). I was very surprised that you implied that there was no recourse to such an appeal in your initial response.

I apologise for the length of this letter but your response raises issues that deserve a comprehensive response since this letter is by way of an appeal against your original decision to refuse to supply a range of information requested

Context

The NMC is a statutory regulator and a registered charity, funded almost entirely by compulsory fees paid by nurses and midwives. Decisions about governance, procurement, conflicts of interest, and legal spend are therefore matters of legitimate public interest.

The NMC’s refusal to disclose basic governance and procurement records in these circumstances inevitably gives rise to a reasonable inference that the NMC is unable or unwilling to evidence compliance with FOIA, its own procurement policy, and the public law principles of transparency, proportionality, and accountability. I’m afraid this feels like precisely the leadership defensiveness and resistance to scrutiny that was identified in the Independent Culture Review.

This internal review is therefore an important opportunity for the NMC to demonstrate, through evidence rather than assurances, that lessons have genuinely been learned. With this context in mind, I hope to receive a more considered response to my internal review request.

Procurement Process

Misuse of s14(1) FOIA exemption

The NMC should know that requests do not become vexatious simply because more than one person is interested in the same subject matter, even if those individuals know one another. In addition, the ICO is clear about the need to differentiate between cases where the requesters are abusing their information rights to engage in a campaign of disruption, and those where the requesters are using FOIA as a channel to obtain information that will assist their campaign.

ICO guidance also highlights the importance of recognising that campaigns are not in themselves vexatious. The existence of a campaign may be the result of a legitimate public concern about an issue and so reflect a weighty public interest in the disclosure of the information.

I have a long-established professional career in researching and advising on whistleblowing, organisational culture, discriminatory practices, and governance in the NHS. I have a clear legitimate interest in seeking the information that I have requested which cannot properly be categorised as vexatious. Moreover, as NMC records will show, I have been engaged in discussions with and about the NMC for over a decade over concerns that were confirmed by the RISE Review.

The ICO is clear that public interest, seriousness of the subject matter, and the accountability of a public authority are all relevant factors that need to be taken into account. This is significant given that Lucy McLynn’s published report confirms that:

 1.   Ijeoma Omambala KC had obtained all information necessary to complete her report before she was decommissioned;

2.   approximately 12,000 pages of evidence had already been collated;

3.   no witnesses, including the whistleblower, needed to be re-interviewed; and

4.   the recommissioned reviews were completed entirely on the basis of existing material.

Ms McLynn’s report further acknowledges that multiple investigations were unnecessary. In those circumstances, it is plainly reasonable, and in the public interest, to ask:

 1.   who decided to decommission one investigation and commission others;

2.   how those decisions were governed and recorded;

3.   whether alternatives were considered, including a single coherent process;

4.   whether those decisions represented good governance and value for money; and

5.   what the total cost of that fragmentation has been.

Given the reasons I have set out above, my expectation is that the information requested is disclosed, or the internal review clearly identifies:

 1.   the quantified or evidenced burden created by this request;

2.   why the specific, finite procurement questions asked could not reasonably be answered;

3.   how the request, viewed objectively, lacks serious purpose or value.

Compliance with Procurement Processes

Your response asserts that the NMC acted in line with the Procurement Act and its procurement policy, yet you have refused to disclose the records that would evidence this.

The recommissioned reviews were to report on the concerns raised by the whistleblower, which included systemic issues relating to transparency, leadership behaviour, and racism. The publicly available professional profiles for both Victoria Butler-Cole KC and David Hopkins on their Chambers website do not list any specialist expertise in racism, racial discrimination, race equality issues, or cultural competence.

Under procurement law, any departure from competitive tendering must be objectively justified, evidenced, and aligned with transparency, equal treatment, and value for money. If no tendering process was followed, and a Single Tender Award was made, the NMC should be able to disclose:

 1.   how expertise requirements were defined;

2.   how the market was assessed;

3.   why competition was not pursued;

4.   how value for money was evaluated; and

5.   the documentation setting out the reasons this instruction was necessary.

Failure to Confirm What Information Is Held

Responding to legitimate questions by making assertions rather than with evidence  might well suggest that the behaviours reported in the Independent Culture Review have not yet been addressed.

Given that my request is clearly not vexatious, the NMC is under a statutory obligation, under s1(1)(a) FOIA, to explicitly state whether the records requested are held or not held. Your response does not comply with this as you’ve not confirmed whether the NMC holds records relating to:

1.   the decision to decommission Ms Omambala KC;

2.   consideration or approval of that decision by Council, the Audit and Risk Committee, and/or the People and Culture Committee;

3.   procurement evaluation records, scoring criteria, expressions of interest, Single Tender Award templates or logs; and

4.   conflict-of-interest declarations or assessments for investigators or relevant decision-makers.

If such records do not exist for decisions of this scale, cost, and public significance, that fact must be stated plainly. The absence of records would itself raise serious governance concerns.

Conflicts of Interest

Delegation of governance duties is not lawful

You have said in your response that no conflict mitigation documentation is held because barristers and solicitors are subject to professional codes of conduct. This does not answer the question asked. My question is about whether the NMC, as the instructing authority, discharged its own governance responsibilities by:

1.   identifying actual or perceived conflicts;

2.   recording that consideration; and

3.   evidencing any mitigation.

Your response fails to confirm whether:

1.   any internal conflict assessments were recorded;

2.   any declarations or assurances were obtained and retained; or

3.   any such matters were considered by Council or its committees.

If no such records are held, that must be stated clearly. However, the absence of these records would again be concerning given:

1.   Ms McLynn is a Senior Partner at Bates Wells, a firm which has an ongoing commercial relationship with the NMC as a retained legal provider as set out in the NMC’s Annual Report and Accounts 2024-2025;; and

2.   Ms Butler-Cole KC acts as Lead Counsel to the Thirlwall Inquiry and has an established working relationship with the NMC’s senior leadership and General Counsel team.

Those connections do not appear to support the NMC’s assertion that no records were necessary.

Cost and Expenditure

The NMC has already disclosed that Ms Omambala’s contract notice was for £100,000 and that £71,775 (including VAT) had been spent up to 21 August 2024. It is not credible to suggest that disclosing the remaining cost for the same engagement suddenly engages commercial sensitivity, particularly where equivalent figures have been disclosed for other investigators. Selective disclosure undermines the exemption claimed.

The refusal to disclose the cost of work carried out by Ijeoma Omambala KC under section 43(2) FOIA is inadequately reasoned. Your response does not explain:

1.   whose commercial interests would be prejudiced;

2.   the nature or likelihood of that prejudice;

3.   how the position has changed since the NMC previously disclosed aggregate cost figures; or

4.   how the public interest test has been applied.

The ICO consistently recognises a strong public interest in transparency around public spending and value for money, especially where governance concerns have been raised. Exemptions must be applied narrowly and evidenced. They cannot be used to avoid scrutiny or potential embarrassment. It is my view that this is what the NMC is seeking to do by refusing to disclose these figures.

Legal Professional Privilege

Your response asserts that Ms Butler-Cole KC and Ms McLynn were wholly independent and required no conflict-of-interest plan, while simultaneously claiming that correspondence with them is exempt under legal professional privilege. These positions cannot both be correct. Either:

1.   they were acting as the NMC’s lawyers (engaging privilege), or

2.   they were independent reviewers, in which case communications with them are not privileged.

The NMC cannot switch characterisation to suit non-disclosure.

Your response also treats section 42 as a blanket exemption; fails to explain whether all withheld material is wholly privileged; and shows no evidence that the public interest test under section 2 FOIA has been applied.

There is no consideration of partial disclosure or separation of non-privileged factual material. The NMC’s reliance of this as an exemption raises serious concerns that it has not changed its practices since the PSA raised similar concerns in its Lessons Learned Review 2018.

Scope, Instructions, and Public Assurances

Victoria Butler-Cole KC’s Report

I was present, by agreement, at a meeting in which Ms Butler-Cole KC informed the whistleblower that, instead of reviewing the whistleblowing disclosures and identifying the relevant cases to review herself, she confined her review to a pre-selected list of cases supplied with her instructions from the NMC’s General Counsel Team. This list was not referenced in the published Terms of Reference or shared with the whistleblower.

The NMC amended Ijeoma Omambala KC’s Terms of Reference to remove the instruction to “consider the specific cases raised through whistleblowing concerns” and replace it with a more general instruction. Ms Butler-Cole KC confirmed during the meeting that she did not review the case involving concerns about senior leadership misconduct and lack of transparency specifically raised by the whistleblower in the disclosure that triggered Ms Omambala KC’s instruction. It is not clear why the NMC did not have this on the original list of cases that you have referred to in your letter.

I note that Ms Butler-Cole KC’s Terms of Reference also removed the instruction to consider "articles reported in the press and raised subsequently by NMC colleagues,” which I understand had led Ms Omambala KC to review Michelle Russell’s case. Ms Butler-Cole KC confirmed that she had not been asked to review Michelle Russell’s case. It is questionable how much value can be placed on the findings and recommendations of Ms Butler-Cole KC’s report if she was restricted from reviewing the full breadth of concerns raised by the whistleblower. I declare an interest here as I personally gave some support to Michelle Russell whose treatment by the NMC has been extraordinarily outrageous.

Lucy McLynn’s Report

Similarly, I note that the NMC removed the words “similar whistleblowing cases and HR casework” from Ms McLynn’s Terms of Reference. I understand that it was this provision that Jan Tari had relied on to provide his consent for the NMC to disclose all records they held about him to Ms Omambala KC in the week before he took his own life. Given the NMC chose to decommission Ms Omambala KC within weeks of finding out about Mr Tari’s passing, the credibility of the explanation provided at paragraph 3.6 of Ms McLynn’s report for the NMC’s removal of this earlier instruction is open to  question.

The decision to publish a report that the NMC had previously said would be kept confidential to protect the whistleblower is similarly open to question. I note that Ms McLynn also reduced the scope of her investigation and the incidents considered, and that the removal of specifics from her report to enable publication has prevented independent readers from being able to scrutinise Ms McLynn’s conclusions and recommendations. Given my experience of the NMC since 2021 and the RISE report conclusions it might potentially be regarded as the NMC’s senior leadership team seeking to avoid accountability.

Public assurances

These limitations directly contradict the NMC’s public assurances that the scope of the investigations remained unchanged following the decommissioning of the original investigator. Without disclosure of instructions, approvals, scope-setting decisions, and contemporaneous records, there can be no independent assessment of whether the investigations were designed to enable learning—or deliberately constrained to avoid scrutiny of senior decision-making.

Procedural Non-Compliance

My request was submitted on 7 October 2025, and the response was provided on 8 January 2026, long after the statutory deadline had passed. I am sure that you are aware that operational backlog does not displace the NMC’s legal duties under section 10 FOIA, particularly if you believed such limited disclosure was being shared.

The NMC appears to have relied on assertions throughout the response, without providing the detail required by section 17 FOIA. In addition, the NMC has made no attempt to provide any meaningful advice or assistance to facilitate disclosure or refine the request where it has relied on exemptions. Taken together, one might reasonably ask whether these behaviours were intended to obstruct or frustrate the disclosure process.

Wider Governance Context

In 2008, NMC Council members themselves blew the whistle on financial mismanagement, leading to a significant proposed fee increase and a £20 million government bailout to prevent this from going ahead. I recall that issue myself.

In 2023, the whistleblower again raised concerns about misuse of funds. Yet since their disclosures, the NMC’s income and expenditure continues to indicate millions spent on consultants and lawyers. The NMC is now seeking to increase registrant fees again to address a £20 million deficit. Against that backdrop, it is difficult to see how the information requested could lawfully be withheld.

Outcome Sought

If the NMC is genuinely confident that it complied with its procurement policy, the Procurement Act, and public law principles, there is no credible reason to withhold the information that would evidence that compliance. Transparency would resolve this quickly, whereas continued refusal for the NMC as a statutory healthcare regulator, would suggest a serious governance failure with direct implications for public trust and public safety.

I therefore ask that the internal review response:

1.   clearly confirms what information is held and what is not (section 1 FOIA);

2.   withdraws reliance on exemptions that are not lawfully justified;

3.   properly applies the public interest tests under sections 2, 42 and 43 FOIA; and

4.   discloses procurement, conflict, instruction, scope, and cost records without further delay.

I look forward to your acknowledging receipt of this letter and a timely response.

Yours sincerely,

Roger Kline OBE