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Wednesday, April 27, 2005

DH Internal review of my FOI request

I have today received a letter following the internal review by the department of health of their decision not to disclose the report by Sir William Wells into the NHSU.

There review has supported their original decision not to disclose the information - details set out below. I have forwarded this to the Information Commissioner who is already reviewing this decision.

Your ref:
Our ref: TO6011201

27 April 2005

Dear Mr Ward,

Thank you for your letter of 18th February 2005, requesting an internal review of the Department’s decision not to publish, under the Freedom of Information Act 2001 (the FOI Act), the Wells Report on the NHSU. Please accept my apologies for the length of time taken to respond to this and your original request. The Department of Health has received a high volume of requests under the FOI Act.

The internal review you requested has now been completed and has supported the original decision not to disclose the information. This letter sets out the reasoning behind this decision.

You are correct to say that for the exemption in section 33 of the FOI Act to apply, the Department needs to demonstrate that:
(a) disclosure is likely to prejudice the authority's auditing functions; and
(b) the public interest in avoiding that prejudice is greater than the public interest in disclosing the information concerned.

In your letter you indicate that you do not believe these points have been satisfactorily demonstrated.

Prejudice to the authority’s auditing functions

As stated in Annex A to the Department’s original response of 14th February, the likely prejudice to the authority’s auditing functions is caused by the concern that publication of the report would endanger the co-operation of individuals with future investigations. This view is confirmed by the Department for Constitutional Affairs' Guidance on the exemptions contained in the Act, which states in relation to s. 33 that:

(§2.5): Relations with audited bodies and audit third parties:

There may be information that originates from an audited body, which, if disclosed, could harm relations between the auditors and that body, and so affect the ability of the auditors to carry out their functions effectively. While auditors have statutory powers to demand access to information in order to carry out the audit it is better if information is made available voluntarily within the context of an open and effective relationship. Moreover, auditors may also rely on information from third parties which sometimes provide a more accurate assessment of a public authority's accounts, or the efficiency/effectiveness with which it carries out its functions. If the disclosure of information by the auditors would make it less likely that such information would be volunteered in the future it would be likely to prejudice the audit function.

As noted in the Department’s letter of 14th February, a number of other exemptions also apply.

Public interest in disclosing the information

You suggest that transparency in the way in which taxpayers’ money is spent is clearly in the public interest. This point was noted in Annex A and the Department does not dispute that there is public interest in disclosure of the information contained in the report.

Balance between public interest in withholding/disclosing the report

However, it is the responsibility of the Department to weigh the public interest in disclosure against the public interest in withholding disclosure. Annex A lists the factors for and against disclosure. It is the Department’s judgement that the factors in favour of withholding the report outweigh the factors in favour of disclosing the report.

Release of an amended report

You indicate that you would be happy if any names or comments which could identify an individual were removed. However, as stated in Annex A it is the Department’s view that it would be inappropriate to disclose only some parts of the report, which might give a misleading impression of its contents. Furthermore publication of any part of the report would tend to undermine the policy of encouraging candour.

Commitment to release the report

You refer to our commitment made by Rt Hon John Hutton, MP, Minister of State for Health on 9th November (Our Ref: PO5005693) to publish the findings of the ALB review process. The publication on 30 November 2004 of An Implementation Framework for Reconfiguring the DH Arm’s Length Bodies fulfilled this commitment.

If you are not content with the outcome of this internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

Information Commissioner’s Office
Wycliffe House
Water Lane
Cheshire SK9 5AF

If you have any queries about this letter, please contact me. Please quote the reference number above in any future communications.

Yours sincerely,

Jill Moorcroft
Freedom of Information Unit Head
Skipton House
80 London Road


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