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The memo, which was issued in February and has not been withdrawn or updated since, goes on to suggest to strategic health authorities and trusts details of the clauses in the act which can be quoted to applicants when their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.
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.
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."
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.