Post: 12 January 2016
Responses to the Independent Commission on Freedom of Information’s call for evidence were published in early December. In mid December a response from NHS England was removed and replaced with the following note:
Row 182, a submission from NHS England, has been removed on the request of the respondent.
A usually reliable third-party source has provided me with a copy of the NHS England response. I have not verified the content in full, but have reproduced it verbatim below. The Commission’s questions are in bold.
We don’t know why the respondent requested removal of the submission. However the suggestion that public bodies and staff should be able to “pre-apply” FOI exemptions to meetings would likely be controversial if endorsed by NHS England. The response also clearly needed more proofreading (”pubic bodies”, “out of ballast”), which suggests it may not have been vetted and approved through normal channels.
What is your name?
NHS England
What is your organisation?
NHS
What protection should there be for information relating to the internal deliberations of public bodies? For how long after a decision does such information remain sensitive? Should different protections apply to different kinds of information that are currently protected by sections 35 and 36? - What protection should there be for information relating to the internal deliberations of public bodies? For how long after a decision does such information remain sensitive? Should different protections apply to different kinds of information that are currently protected by sections 35 and 36?
It is common for staff within public sector services to feel reluctant when asked to comment on high profile or contentious issues. An ability to engage a function of the Act which would enable organisations to pre-apply elements of an exemption (e.g. S36(2)( b )( c )) would allow staff to partake in deliberations with a greater level of confidence.
Particularly contentious or high level deliberations of public bodies often take place as part of designated process, such as a closed/private Board meeting. Pubic bodies and staff may benefit by outline that when such meetings occur, an exemption is pre-applied to information resulting from the deliberations, as well as information provided to the meeting in order to initiate the deliberations in question. The pre-application of the exemption may be withdrawn where appropriate upon request, rather than being retrospectively applied. If this practice were to be adopted, authorities should be encouraged/mandated to make the terms of such closed/private meetings clear to the public to promote understanding of how, where and in what circumstances an exemption may be pre-engaged.
It is not possible to qualify how long information remains sensitive due its inherent sensitivity. However, organisations may be asked to give due consideration to this issue as part of criteria when applying an exemption, with a view to this forming part of a refusal notice to applicants.
It would be difficult to be formulaic when determining different levels of protections to qualified exemptions and may lead to confusion as to how additional considerations apply to different levels of protection.
What protection should there be for information which relates to the process of collective Cabinet discussion and agreement? Is this information entitled to the same or greater protection than that afforded to other internal deliberative information? For how long should such material be protected? - What protection should there be for information which relates to the process of collective Cabinet discussion and agreement? Is this information entitled to the same or greater protection than that afforded to other internal deliberative information? For how long should such material be protected?
This is very much dependent upon the nature of the discussions and is therefore difficult to comment.
What protection should there be for information which involves candid assessment of risks? For how long does such information remain sensitive? - What protection should there be for information which involves candid assessment of risks? For how long does such information remain sensitive?
This is again intrinsically linked to the nature of the risk and the associated public interest.
A clear definition and/or guide as to what Public Authorities consider to be ‘business critical’ risks would help authorities to decide where such risks are to be deliberated. Consideration may then be given to such risks being discussed following the pre-application of a specific exemption (as outlined in question 1). This would give authorities the ability to incorporate into their form of terms (as outlined in questions 1) as to what may be discussed at closed/private meetings. This would give a clear explanation to the public which categories of risks are to be discussed in a safe and non-public facing arena and why, as well as outlining those risks which considerations are more likely to be made available upon request.
Should the executive have a veto (subject to judicial review) over the release of information? If so, how should this operate and what safeguards are required? If not, what implications does this have for the rest of the Act, and how could government protect sensitive information from disclosure instead? - Should the executive have a veto (subject to judicial review) over the release of information? If so, how should this operate and what safeguards are required? If not, what implications does this have for the rest of the Act, and how could government protect sensitive information from disclosure instead?
The executive ought to have a veto, though a review of which exemptions the veto may only be applied to should be considered. This would help to ensure specific elements of specific exemptions are considered, rather than a blanket veto which often appears to be enacted based on harm or other factors that were not originally considered as part of the request. In essence, a veto will only be applicable to a set of pre-determined exemptions and if the executive believes the original application of the exemption is correct they will reinforce this decision by way of a veto, rather than the wider judgement, provided that exemption is one to which a veto may be applied.
What is the appropriate enforcement and appeal system for freedom of information requests? - What is the appropriate enforcement and appeal system for freedom of information requests?
The current system appears to work well, though consideration of a designated FOI Commissioner, either working to or alongside the current ICO, may give additional assurance to authorities and the public that FOI requests are scrutinised sufficiently before a decision notice is issued or other enforcement action is undertaken.
The potential for an introduction of charges to applicants when seeking to progress cases to the First Tier Tribunal (FTT) may reduce the amount of trivial requests being carried through. This would encourage applicants to give greater consideration to the points raised by authorities and the ICO, rather than progressing the case to the FTT without due consideration to the rationale behind the decision and the associated cost to the public purse. This would be reimbursed to applicants if the FTT were to accept the case.
Is the burden imposed on public authorities under the Act justified by the public interest in the public’s right to know? Or are controls needed to reduce the burden of FoI on public authorities? If controls are justified, should these be targeted at the kinds of requests which impose a disproportionate burden on public authorities? Which kinds of requests do impose a disproportionate burden? - Is the burden imposed on public authorities under the Act justified by the public interest in the public’s right to know? Or are controls needed to reduce the burden of FoI on public authorities? If controls are justified, should these be targeted at the kinds of requests which impose a disproportionate burden on public authorities? Which kinds of requests do impose a disproportionate burden?
The burden imposed on public authorities is significantly out of ballast when measured against the wider public good. The combined direct and indirect costs incurred by Public Authorities (and collectively such as ‘the NHS’ or ‘the Police’ when measured on such a large scale) to provide information must run into many millions of pounds and redirects staff and other resources away from the delivery of the authorities core public serving function in many cases.
High profile cases which would not, in all probability, have been uncovered as issues with major public interest without the FOI Act certainly exist, though the amount of issues with such high levels of public interest are ominously low when measured against the number of requests across the entire public sector in the last 10 years.
A more rigorous duty toward an authorities obligation to comply with s46 of the FOI Act and associated Code of Practice, coupled with a significant reduction to the current s12 cost ceiling limits may help to ease the strain. This may enable organisations to provide information readily to information requests which take a small ‘appropriate limit’ amount of time and give authorities discretion to ask applicants to be very specific about the information required for those which appear to be more burdensome. Mandating authorities to specifically outline why information cannot be provided because of a breach of the appropriate limit would allow for wide ranging requests to be made narrower in scope, thus reducing the burden, and promote a greater level of compliance with a more rigorous s46 and Code of Practice.