Will door stay shut on NHS secrets?

Cabinet Office expected to appeal against ruling that it must release documents that reveal how Tony Blair approved plans for £12.4bn NHS IT scheme

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requested under the Freedom of Information Act is released, the government can claim it is irrelevant because it is out of date.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.

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