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Thursday, February 17, 2005

FOI request - Wells report on NHSU - response

Following my request to the Department of Health under the Freedom of Information Act for the publication of the report by Sir William Wells into the NHSU (previosuly detailed on this blog: 9th Feb 05, 31st Jan 05, 31st Dec 04, 16th Oct 04 ) I today recieved a letter of reply dated 14th Feb (Reference No: TO6011201).

The letter says that:

"The Department has decided not to disclose the information you requested. The information is being withheld as it fails under the exemption in section 33 of the Freedom of Information Act 2000.A number of other exemptions apply to a lesser extent. In applying this exemption, we have had to balance the public interest in withholding the information against the public interest in disclosing the information.The attached annex to this letter sets out the exemption in full, as well as the factors the Department considered when deciding where the public interest lay."

And the full reasons set out in the Annex are:

Section 33, entitled "Audit functions", provides as follows:
(1) This section applies to any public authority which has functions in relation to -the audit of the accounts of other public authorities, or the examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions.
(2) Information held by a public authority to which this section applies is exempt information if its disclosure would, or would be likely to, prejudice the exercise of any of the authority's functions in relation to any of the matters referred to in subsection (1).

Factors for disclosure
The exemption under s. 33 is subject to the public interest test in s. 2(2)(b); that is, it applies if the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
There is a public interest in disclosure of the information contained in the Report as disclosure could enhance the scrutiny and accountability of a public body.

It is also a relevant factor in favour of disclosure that not all of the Report consists of comments or opinions which can be traced back to particular individuals.

Factors for withholding

The Secretary of State has the function of examining “the economy, efficiency and effectiveness with which other public authorities (e.g. NHSU) use their resources in discharging their functions". Therefore, s. 33 applies by

The concern that publication of the Report would endanger the co-operation of individuals with future investigations, fails squarely within s.33(2).

That view is confirmed by the Department for Constitutional Affairs' Guidance on the exemptions contained in the Act.

The Department must consider whether and to what extent its policy of maintaining the effectiveness of future investigations is threatened by the disclosure of those parts (perhaps the majority) of the Report which consist of general comments or criticisms originating from sources which are not identifiable from the Report itself.

There are arguments as to why it might be inappropriate to disclose only some parts of the Report, which might give a misleading impression of its contents; and that the publication of any part of the Report might undermine the policy of encouraging candour.

Reasons why public interest favours withholding information

These are matters for the Department to weigh up. There is no judicial authority on the application of the public interest test.

The Department considers that disclosure of the Report would damage the Department's capacity for conducting, or procuring the conduct of, effective investigations in the future.

The force of the latter point is enhanced by the fact that the Report is not a routine or run-of-the-mill investigation, but a one-off project which has been commissioned, in effect, by Ministers so as to enable them to take a particular policy decision, regarding the future of NHSU.

The importance of maintaining the effectiveness of special projects such as this, which are central to good decision-making by Ministers, can be argued to be greater than if it were only the more general investigative capacity of the Department which were at issue.

Confidential Report

Applicable Exemption

Section 33 - Audit functions

A number of other exemptions are relevant but to a lesser extent:

Section 40 - Personal data

Section 35 - Formulation of Government policy

Section 41 - Breach of confidence

I am not a solicitor or lawyer, but take this to mean that if a report involves audit (ie consideration of the financial situation of a public body) then it is not in the public interest to be able to see it. To my mind this goes against the spirit of the Freedom of Information Act which is supposed to let people know how well taxpayers money is being spent.

I also understand this to mean that from the report any "whistle blowers" might be able to be identified - and this may discourage others from giving evidence to such an inquiry. I would be very happy for anything which identified an individual to be removed.

I also wonder why in his letter dated 9th Nov 2004 (Ref PO5005693) John Hutton Minister of State at the Department of Health could say that "it is our intention to publish our findings shortly" and yet on 14th Feb 2005 the Department consider it is not in the public interest to publish them?

I will be writing to the Department's Freedom of Information Unit complaining that it took longer then the 20 working days allowed by law to respond and requesting an internal review of the decision. If anyone has advice about what to put in this request or the best form of words to refute their reasons I would be very interested in hearing from you. I will publish my letter to them here.


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