Department of Health loses battle over consultants’ cost letter

Would House be worried at the prospect of frank discussion being halted?

The Information Commissioner has ordered the Department of Health to release a letter from a former Treasury minister concerning the NHS consultant contract – which went £150m over budget.

The Department of Health received a request under the Freedom of Information Act for the business case on the consultants’ contract which it provided to HM Treasury in 2002. The requester also asked for a copy of HM Treasury’s response.

The matter was referred to the Information Commissioner’s Office (ICO) and, during the course of the investigation, the Department of Health did release its business case in full.

However, it has maintained that the Treasury’s response should not be released on the grounds that it is covered by S.35 (formulation and development of government policy).

The Information Commissioner agrees that the exemption applies. Nonetheless, the letter from a Treasury minister, which contains the response to the business case, must be released on public interest grounds.

The Information Commissioner was not persuaded by the view that disclosure would affect the frankness and candour with which ministers would debate policy issues in the future.

The Decision Notice [link] also highlights that this contract is no longer a ‘live’ issue, but that there has been significant public interest in whether the contract has delivered value for money.

On WhatDoTheyKnow I have asked for the information here. [link]

How low can you go?

At some point you can get no lower.....

Freedom of Information officers often come up against the problem of when and if statistical data can be seen on specific occasions to be a breach of S.40 (Personal Information).

Most commonly this problem has been seen in tables of data – often about medical conditions – where the public authority will put a dash “-“ in any cell where the value is less than five.

The Department of Health (DoH) regularly uses this technique when providing tables showing the number of women who have had multiple abortions.

You will see from this Abortion data table that there are a handful of under-18 girls who are on their third abortion or more – yet the DoH refuses to give us the exact figure.

In Scotland there was a long-running dispute over whether low cell values in a table of the prevalence of childhood cancer, could lead to those children being identified.

I have to say that I still have difficulty with the concept and certainly do not accept that any cell value under 5 or ten automatically has to be anonymised. In the abortion table example how would knowing that six women aged under 18 had their third abortion that year led to their identity being exposed?

The key to these questions, in my opinion, is the total pool from which the information is drawn. So in the abortion data case your pool of identifiable candidates is all the women aged under 18 in the whole country.

But this vexed problem of low cell values has taken a different turn in the case of Beresford Lane in the Sussex village of Plumpton Green.

A company that wants to put together data for prospective house buyers asked the local police force for data about anti-social behaviour in the lane for a six month period.

Sussex Police refused to either confirm or deny (NCND) it held any such information as it claimed that to state it held such information could lead to the identity of either the victim or the culprit. This use of S.40 was rejected by the Commissioner and has now also been thrown out by the Tribunal.

But the key element in this case was in essence the “total pool”/“cell value” which in this case was the number of people who lived in the lane  against the number of anti-social behaviour complaints in that lane.

The Tribunal came to the following conclusion: “The Appellant says that if it confirms or denies that it holds the requested information, that could lead to the identification of either those who have made complaints about ASB, or those about whom such complaints have been made. Clearly, if it does lead to such identification, that would amount to disclosure of personal data. The question is - would it lead to such identification?

“The facts before us are notably brief. We have been told that Beresford Lane, Plumpton Green, BN8, is a rural road with approximately 17 residential dwellings. Presumably, many, if not most of the 17 dwellings, will have multiple occupiers which means there are likely to be many more than 17 people living in the area covered by the request. The request covers a period of 6 months. We have no other facts of any significance. On these simple facts, we have great difficulty in seeing how, if the Appellant confirms or denies that it holds information on the number of ASB complaints reported, and the descriptions of any such ASB complained of, in that period and for that location, that would enable a living individual to be identified as having either made a complaint or having been the subject of such a complaint, or indeed to be identified in any other way. The Appellant has simply not demonstrated how that connection could be made.

“The position might be quite different on different facts. For example, if there was a known incident concerning one or more particular dwellings or individuals and if the time period covered by the request was relatively specific to that incident, a confirmation or denial could well lead to an individual being identified. That, however, is not the situation in the present case.”

So it would appear that in this case the Tribunal thinks that to disclose information about a cohort – sadly we don’t have an exactly figure but the number of people who live in 17 houses (34?) – will not breach S.40. But as the Tribunal has said different circumstances and different figures might lead to a different ruling.

The key question is when does that group number get so low that S.40 would be breached. And it appears that the Tribunal has neatly ducked out of answering that question.

The Tribunal ruling can be seen here. Tribunal decision.

Abortion data Tribunal begins

Anne Widdecombe didn't get the chance of appearing before the Tribunal

The Department of Health (DoH) has gone to an Information Tribunal in a bid to overturn a decision by the Information Commissioner ordering it to release statistics about late abortions.

Anti-abortion group ProLife Alliance had made the initial request to the DoH which had been refused under S.40 (Personal Information) and S.44 (Prohibition on Disclosure). ProLife Alliance appealed the decision and after 11 months the DoH upheld its original verdict to withhold the information.

The Information Commissioner ruled (link) the data could be given out and that there was no proof that just because the numbers were low it led to the identification of a person.

Government officials at the DoH have appealed the ruling and a Information Tribunal has been taking place in London this week, with the verdict expected later in the summer.

The rarity of late terminations for rare medical conditions means release of data about them could cause ‘mental distress or harm’ should a woman realise she was the only one in the UK to have such a procedure, the Government told a London information tribunal.

Geoff Dessen, deputy director of health and wellbeing at the Department of Health, said a balance had to be struck between openness with information and individuals being identified.

In extreme cases in other countries, identification had led to individuals being murdered, he said.

“Just because it hasn’t happened here yet, doesn’t mean it won’t,” he added. “We don’t know the risks.”

Abortion statistics where fewer than ten cases related to a particular condition have not been published since 2002.

DoH lawyer Christina Michalos said the data related to “sensitive, personal and private” medical information involving women who had had a “devastating experience”. Such disclosure could trigger “mental distress or harm” in one-off cases, she said.

“This case is about the protection of privacy, it is not about politics,” she added. “It’s the right of any person to keep their personal medical information private.”

The four-day hearing was originally going to be held in private at the request of the Government but an agreement was reached with the Information Commissioner’s Office to hold part of the hearing in public.

However, The ProLife Alliance was refused permission to call Tory MP Ann Widdecombe to give evidence in addition to a written statement she has already submitted.

Timothy Pitt-Payne, representing the Information Commissioner, admitted the tribunal was dealing with ‘highly controversial subject matter’. However, he stressed that the commissioner was ‘not taking a position on the rights or wrongs of abortion’.

Sex, booze and FoI

Is this lady concerned about the delicate balance in the public interest argument relating to the disclosure of the advice behind the Government's safe-drinking message?

The Department of Health (DoH) has been ordered to release background information it holds in relation to a public pronouncement that women should avoid all alcohol while pregnant or while trying to conceive.

In a sweeping decision the Information Commissioner’s Office (ICO) stated the release of the contested documents could improve the quality and administration of decisions within Government.

The DoH had said it should not have to release the information as it was subject to S.35 (Formulation of Government Policy) and the balance of the public interest was in favour to maintaining the exemption.

However, in a ruling [Ref: FS50198015] from ICO it was stated that although the exemption was in place the public interest test had been miscalculated and the papers should be disclosed.

The original question to the DoH was made in June 2007 and was for “information concerning how the DoH reached its recent decision to recommend that pregnant women and those trying to conceive should avoid alcohol.”

The DoH had said a decision to release the documents would have the so-called ‘chilling effect’ on civil servants and health professionals who had been involved in the process.

But this argument was overruled by the ICO who said the DoH had failed to give clear evidence of how the ‘chilling effect’ applied to the specific case.

In conclusion the decision notice says: “the Commissioner considers that that civil servants must be expected to provide full and candid advice as part of their professional duties. Therefore he does not accept that they will be easily discouraged from contributing fully during the policy formulation process if the requested information is released.

“Moreover, given the interests that other stakeholders have in shaping policy to meet with their own interests he does not believe that they would readily be less candid or refuse to contribute to future policy in the event of the material being disclosed.

“However, he is also mindful of the proximity of the timing of the request to the completion of the guidance and the content of the disputed information, some of which is particularly free and frank. In view of this he has attributed some significance to the chilling effect argument.”

The Commissioner even went on to state that releasing the information could in fact improve decision making within Government, saying: “Disclosure would promote the accountability and transparency of the DoH for the decisions it has taken in respect of the guidance.

“Placing an obligation on the DoH and officials to provide reasoned explanations for decisions made will improve the quality of decisions and administration.

“In this case the Commissioner considers that there is a significant public interest in releasing the requested information as it would help to explain the reasons behind the re-wording of guidance about alcohol consumption during pregnancy.”