Freedom of Information Act enquiries about supplier
contracts could be blocked
Whitehall officials are asking executives in health authorities and
trusts to refuse requests under the Freedom of Information Act for
information about contracts worth billions of pounds under the
national programme for IT (NPfIT) in the NHS.
Although the act gives officers in individual trusts and health
authorities the final decision about what information to release,
the Department of Health has issued a guidance memo which helps
them refuse applications.
The memo has been issued by the NPfIT, which is part of the
Department of Health and is to be renamed Connecting for Health.
The department's modernisation of the NHS is the world's largest
civil computer programme.
Long before the guidance memo was issued, stakeholders in the
programme hit a wall of secrecy when they tried to find out about
the NPfIT's £6.2bn worth of contracts with service providers.
For example, a paper for a meeting of directors of the Bristol
South and West Primary Care Trust on 24 February 2005 said, "No NHS
staff in the Southern Cluster have been allowed by the NPfIT to see
the contracts it has signed with Fujitsu Alliance [the local
service provider]."
The NPfIT memo said it was considering releasing edited versions of
documents which give details of commercial arrangements with
suppliers.
"Pending completion of these considerations, the NPfIT expects
strategic health authorities and trusts to withhold information
which relates to the NPfIT commercial arrangements from disclosure
when handling requests for access to this information under the
Freedom of Information Act," it said.
The memo, which was issued in February and has not been withdrawn
or updated since, goes on to suggest to strategic health
authorities and trusts details of the clauses in the act which can
be quoted to applicants when their requests for information are
refused.
The memo said it might be helpful to explain to inquirers making a
request for access to this information that, pending resolution of
the considerations "referred to above", they will be unable to
comply with such requests.
Legal opinion
Lawyer Dai Davis of Nabarro Nathanson said officials have had four
years to prepare for the act's introduction and should by now have
decided what information about the NPfIT is exempt and what can be
released.
Davis said information which is the subject of an express
undertaking of confidentiality by the secretary of state John Reid
or NHS chief executive Nigel Crisp should be kept secret. But
otherwise, trusts and health authorities should be free to consider
applications under the act. He criticised the blanket nature of the
NPfIT's advice memo. The guidance also covers related documents
such as "implementation plans, service performance measures and
details of ongoing commercial discussions".
The excluded material would include details of the financial
penalties the NHS would face if it failed to meet contractual
obligations to suppliers, whether suppliers were in breach of
contract, were in dispute with the NPfIT or could not cope with
demands placed on them under the programme.
It would also cover any discussions with suppliers about extending
timetables, revising or terminating contracts, paying higher fees
or not requiring them to deliver as many features in software as
originally required in the specified timeframe.
Most important of all for trusts, the excluded material could have
allowed stakeholders in the programme to understand what software
functionality was due to be delivered by which supplier and
when.
The memo warned that the release of certain information could place
the secretary of state in breach of contractual obligations to keep
material confidential.
"Release of this information is also likely to cause substantial
prejudice to the commercial interests of the Department of Health,
the NHS and/or the NPfIT prime contractors," said the notice.
Public interest
Lawyers and experts said trusts were entitled to release
confidential information if they decided it was in the public
interest and other terms of the Freedom of Information Act required
disclosure.
Lewina Farrell, a solicitor at law firm Tarlo Lyons, said, "This
sort of instruction [by the NPfIT] would not be appropriate. Each
Freedom of Information Act request should be considered on its own
merit. The strategic health authority or trust may still decide to
withhold the information, but if due consideration is not given, it
could face sanction by the information commissioner."
Maurice Frankel, head of the Campaign for Freedom of Information,
which is funded by organisations such as the Joseph Rowntree
Charitable Trust and the Consumers' Association, went further. He
said the NPfIT's memo was "certainly overstepping the mark".
He added, "It is instructing trusts to refuse all requests about
the NPfIT on the grounds that some of the information is likely to
be exempt. It would be fair enough for them to ask trusts to
consult them before releasing information, but to tell them not to
disclose as a blanket rule is inciting them to breach the Freedom
of Information Act."
A spokesman for the NPfIT said, "The memo issued to the NHS at the
beginning of February was quite clearly marked as guidance. It did
not purport to be instruction or direction and was never intended
as such."
Davis said the memo may imply more than mere "guidance". He said,
"The secretary of state is empowered to issue formal guidance under
the act (see section 45) but in doing so the secretary of state
must consult the information commissioner and that guidance needs
to be laid before both Houses of Parliament."
And Farrell said the NPfIT may be perceived to have given a blanket
instruction to withhold information. She added, "It seems anomalous
for the NPfIT to suggest that all information potentially subject
to the commercial interests exemption should be treated in the same
way, and particularly that it should all be withheld from
disclosure.
"The public interest test is required to be applied to each piece
of information requested and may well be resolved differently in
each case."
The memo said the NPfIT was consulting its main suppliers about
whether to prepare edited versions of documents which relate to
commercial arrangements.
But Farrell pointed out, "There is no indication as to when the new
NPfIT guidance will be available."
In a statement to Computer Weekly, the NPfIT said it accepted that
"individual public authorities, including NHS bodies, are
responsible and accountable for their own actions under the Freedom
of Information Act". It added, "That is why the memo was issued,
merely as guidance. It talks in terms of our expectations, not of
our requirements.
"The memo does not 'instruct trusts to refuse all requests about
the NPfIT'. The introduction spells out the fact that it relates
specifically to 'requests for disclosure of commercial arrangements
with NPfIT prime con- tractors', and in the final paragraph
mentions the possibility of future guidance about requests for
NPfIT information other than about commercial arrangements."
Properly cleared
The spokesman added that the NPfIT's guidance "was properly cleared
through appropriate channels".
In a speech last week to the HC2005 health informatics conference
in Harrogate, Richard Granger, director general of NHS IT, spoke of
the NPfIT's openness. Referring to the uptime of networks, he said
information from the contracts was on the NPfIT website.
But there is no explanation, for example, of what suppliers have to
deliver under the contract and by when, or the penalties facing the
NHS if trusts do not deliver their contractual obligations.
Lord Falconer, whose Department of Constitutional Affairs
introduced the Freedom of Information Act, said last year that the
legislation would create a "new culture of openness: a change in
the way we are governed".
He added, "The more there is a culture of openness, the better
decision making will be. If decisions have to be publicly
explained, they will be better taken. Real informed accountability
improves standards."
This message does not appear to have got through to all of the
health officials in Whitehall, much to the chagrin of those who
have to implement the NPfIT locally.
