Whitehall documents that reveal how former prime
minister Tony Blair approved plans for a multibillion-pound
IT-based modernisation of the NHS may remain secret for months, and
perhaps indefinitely.
In August, the information commissioner, Richard Thomas, ordered
the Cabinet Office to release the documents under the Freedom of
Information Act. The Cabinet Office is expected to appeal
against that decision, so it can keep the documents secret until a
final legal decision is taken - which could be next year, or 2009
if the case goes to the High Court.
The likely appeal highlights a feature in the Freedom of
Information Act that can delay the publication of documents for
years, even if the government loses its appeals to the information
commissioner and the Information Tribunal.
By the time any information that has been requested under the
Freedom of Information Act is released, the government can claim it
is irrelevant because it is out of date.
Computer Weekly applied in 2005 for information on a 2002
seminar at Downing Street which led to the launch of the world's
largest civil IT-based scheme, the
National Programme for IT in the NHS.
It was attended by Tony Blair, the chief secretary of the
Treasury, the chief executive of the Office of Government Commerce,
the e-envoy, the secretary of state for health, the health
minister, John Pattison, the then senior responsible owner of the
National Programme for IT, and business analysts.
Reasons for secrecy
Some of the government's reasons for refusing to publish papers
on what discussions took place at the seminar were:
● The information held by the Cabinet Office on the Downing
Street seminar related directly to the "formulation of policy" and
was exempt from disclosure.
● The issues were still "live" at the time of Computer Weekly's
request (January 2005) and the early stages of implementation of
the NHS IT programme were therefore "still highly sensitive".
● Some of the information was used by the prime minister to
reach decisions on the future role of IT in delivering NHS services
"There is therefore a clear relationship between the withheld
information and the formulation of policy."
● Some of the information was "drafted by the prime minister's
private office staff as part of standard private office
procedures". The Cabinet Office said the Freedom of Information Act
allows officials to withhold information that relates to the
operation of any ministerial private office.
● Non-disclosure facilitated the free and frank exchange of
views between policy makers and advisers.
● Participants at such a meeting should be able to "conduct
rigorous and candid risk assessments of their policies and
programmes".
● They should have a "free space to think the unthinkable"
without the fear that they would be "held up to ridicule".
● "Records of such meetings might be neutered" to reduce the
"risk that their disclosure could cause embarrassment".
● Disclosure would "affect the behaviour of ministers and
officials in considering other projects in future".
The Cabinet Office put only one point in favour of publishing
the papers. It said, "Members of the public would be interested in
how decisions were made and are being made on this
multimillion-pound IT programme for improving NHS clinical care and
efficiency."
Ruling for openness
Ruling against the Cabinet Office, the information commissioner
said:
● Ministers and officials are entitled to hammer out policy
without the threat of lurid headlines depicting that which has been
merely broached as agreed policy. But Computer Weekly's request was
made three years after the seminar at Downing Street, long after
the policy decision was taken. The passage of time was "an
important factor in reducing any prejudice which might arise from
disclosure".
● The argument that NHS IT is still a live issue may be a good
reason to publish the information.
● The Information Tribunal, which deals with appeals against
Freedom of Information Act decisions, has already ruled against the
argument that the threat of disclosure would cause civil servants
to be less candid when offering their opinions. The tribunal said,
"We are entitled to expect of civil servants the courage and
independence that is the hallmark of the Civil Service." And they
"should not be easily discouraged from doing their job
properly".
● Civil servants would be in breach of their professional duty
as public servants should they deliberately withhold relevant
information or fail to behave in a manner consistent with the Civil
Service Code. "It is a matter for the bodies concerned to ensure
that their officials continue to perform their duties according to
the required standards."
● Information was not sensitive simply because it related to the
deliberations of very senior officials or government ministers.
● Released information could allow policy decisions to be
challenged after the event.
Advantages of disclosure
The commissioner found that there were "strong factors favouring
disclosure of the information in this case", these included:
● Encouraging good practice and increasing public confidence
that decisions have been taken properly.
● Promoting policy makers' accountability to the public.
● Facilitating public understanding of how government formulates
policy.
● Facilitating a well-informed public debate on the issues.
● Encouraging public participation in the development and
formulation of government policy.
● Broadening policy input beyond individuals or groups with an
unduly privileged position of influence in policy making
processes.
The information commissioner said, "In this case, these factors
relating to the public's concerns have a particularly significant
weight because of the object of the policy - the NHS - is something
of great importance to the general public.
"Furthermore, the specific policy at issue involved the biggest
public sector IT project in UK history and a very large expenditure
of public money."
He concluded that although formulating and developing policy
often required space for free and frank exchange of views, there
were "strong public interest factors in accountability, confidence
and participation, which favour disclosure of the information in
this case".
Thomas said the Cabinet Office had breached the Freedom of
Information Act by failing to give Computer Weekly "adequate
written notification about whether it held information of the
description specified in the request".
It had also failed to give a "proper assessment of the public
interest factors in favour of disclosure".
He ordered the Cabinet Office to disclose the information
requested or appeal against the decision, on 13 August, within 28
days. A Cabinet Office spokesman last week refused to say whether
it would appeal.