On 21 August a posting on this blog referred to a decision of the Information Commissioner Richard Thomas to order the disclosure of “sensitive” papers about a meeting at Downing Street which led to the launch of the £12.4bn National Programme for IT [NPfIT]in the NHS.
The ruling of the Information Commissioner came two and half years after a request under the Freedom of Information Act for details of the NHS seminar at Downing Street in February 2002, which was chaired by the then Prime Minister Tony Blair.
The NHS seminar had been attended by the Chief Secretary of the Treasury, the Chief Executive of the Office of Government Commerce, the e-Envoy, representatives of the Wanless Review Team, representatives of the Adair Turner Review Team, the Secretary of State for Health, the then Health Minister Lord Hunt, and John Pattison, Senior Responsible Owner of the NPfIT and others.
The Cabinet Office still regards what took place as a state secret– although the NHS seminar took place five years ago.
Below are its arguments for continued secrecy, as set out to the Information Commissioner. Several of the arguments resemble those the government has made to resist decisions of the Commissioner and the Information Tribunal that early gateway reviews on ID cards be published.
– The information held by the Cabinet Office on the Downing Street seminar of February 2002 related directly to the “formulation of policy” and was exempt from disclosure.
– The issues were still “live” at the time of our 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 facilitates 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 publication of the Downing Street papers on the NHS seminar. It said: “Members of the public would be interested in how decisions were made and being made on this multimillion pound IT programme for improving NHS clinical care and efficiency.”
Ruling against the Cabinet Office, the Information Commissioner said that:
– 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 FOI Act decisions by the Information Commissioner] has already ruled against the government’s argument that the threat of disclosure would cause civil servants to be less candid when offering their opinions. The Tribunal had concluded that “we are entitled to expect of civil servants the courage and independence that is the hallmark of the civil service”.
– The Tribunal had also said that civil servants are “highly educated and politically sophisticated public servants who well understand the importance of their impartial role as counsellors to ministers of conflicting convictions” and “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.”
– The Tribunal had further ruled that information was not sensitive simply because it related to the deliberations of very senior officials or government Ministers.
– The Tribunal has favoured the release of information which allows policy decisions to be challenged after the event.
The Commissioner has found that there are a number of “strong factors favouring disclosure of the information in this case:
– encouraging good practice and increasing public confidence that decisions have been taken properly and on the basis of the best available information;
– 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
Richard Thomas, 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 he recognised that formulating and developing policy often required space for free and frank exchange of views and advice, there were “strong public interest factors in accountability, confidence and participation which favour disclosure of the information in this case”.
In his formal finding, Thomas said that 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”.
– By failing to give a “proper assessment of the public interest factors in favour of disclosure”.
He ordered the Cabinet Office to disclose the information requested within 35 calendar days of the date of his notice – 13 August 2007. Officials may appeal the decision to the Information Tribunal within 28 days.