Lawyers have questioned the legality of a memo issued by the NHS national programme for IT (NPfIT), which seeks to prevent the release of information about its £6.2bn supplier contracts under the Freedom of Information Act.
The memo seeks a blanket ban on NHS organisations releasing information about the contracts, although the Freedom of Information Act leaves it to individual public authorities to make decisions on what can and cannot be released.
Such a ban comes at a time when stakeholders in the NPfIT are trying to establish how suppliers to the programme are performing and what exactly they are contractually obliged to deliver and by when.
A spokesman for the Information Commissioner's Office, which arbitrates on the Freedom of Information Act, was shown the memo by Computer Weekly. He said, "Without wishing to comment on any particular caseÉ we would expect to see greater transparency of contracts between private companies and the public sector, such as information regarding the value obtained for public money and the performance of contractors as a result of the act."
The spokesman said each request under the act should be considered on a case-by-case basis. "Even where information falls within the commercial interests exemption, the act requires public authorities to consider whether there is a greater public interest in disclosure of the information. The danger of a blanket non-disclosure policy is that it is likely to result in some information requests being refused even though it is in the public interest to disclose the information."
The NPfIT's memo to trusts and strategic health authorities, dated last month, seeks to prevent them from releasing details of contracts and other related documents such as "implementation plans, service performance measures and details of ongoing commercial discussions".
Lewina Farrell, a solicitor at law firm Tarlo Lyons, said, "This sort of instruction would not be appropriate. Each Freedom of Information Act request should be considered on its own merit."
A spokesman for the NPfIT said, "The note issued to the NHS at the beginning of February was quite clearly marked as guidance. It did not purport to be instructions or direction and was never intended as such."