Jonathan Erskine v The Information Commissioner & Anor

NHSE and the background

"NHS England commissioned this investigation to ultimately ascertain whether North Tees & Hartlepool NHS Foundation Trust were compliant with the conditions of its provider licence. There was a high degree of cooperation and openness from all parties involved in the investigation and we consider this is crucial to be able to conduct an effective investigation."

"13...The Investigation concluded that there was evidence to suspect a breach of the Trust’s provider licence. NHS England subsequently considered the Report’s findings and determined that, given the voluntary efforts being made at the time by all stakeholders, it would not take formal regulatory action at the time, but would keep the matter under review.

The Report was completed in May 2022, but was not made public. Instead, NHS England sent the Trust, for publishing, a regulatory assessment based on the Report’s conclusions (the Regulatory Assessment), which was released on 5 September 2022, along with a covering letter."

The published, redacted version of the report of the Investigation certainly contains some findings that criticise the leadership and governance of the Trust and the NHSE Regional Director. However, these unredacted findings are limited in scope and it is difficult to read across to the Assessment produced by NHSE. Originally, only the Assessment was put in the public domain, at a public Extraordinary board meeting of the Trust, and as a stand-alone document which does not cite evidence directly, it is difficult for the public to make any sense of what actually took place during the period under investigation.

By providing a heavily redacted version the report of the Investigation, some five months after my original FOIA request, I believe that NHSE has muddied the water even more.

In his decision notice, the Commissioner considered only a narrow interpretation of the public interest test, focused on the regulatory function of NHSE and its ability to engage in candid conversations during an investigation.

My view is that the public interest is served by a broader and more profound consideration: trust in public authorities to be open and transparent about the outcomes of investigations, especially where those outcomes result major changes to the management and governance of the organisation that is subject to the investigation.

As I stated in my request for an internal review, “It is … entirely in the public interest that the full facts, as contained in the Governance Investigation Report, should be known, for the sake of clarity and fairness, but also as a basis for improved governance. The NHS is sadly no stranger to examples of institutions which have failed in their responsibilities, and which have escaped regulation or censure until a crisis has happened – precisely because they hid their failings for fear of reputational damage. The application of this FOI exemption, in this case, amounts to the very opposite of the transparency which should be in place.”

Role of the Tribunal

If on an appeal under section 57 the Tribunal considers—

that the notice against which the appeal is brought is not in accordance with the law, or

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

"The First-tier Tribunal ‘exercises a full merits appellate jurisdiction and so stands in the shoes of the IC and decides which (if any) exemptions apply..."

"Please find attached a redacted copy of the Governance Investigation Report into North Tees & Hartlepool NHS Foundation Trust (herein referred to as “the Trust”) finalised in March 2022.

Some of the information contained within the report is being withheld under sections 31, 36, 40 and 41 of the FOI Act as explained in detail below."

The complainant contacted the Commissioner on 5 July 2023 to complain about the way their request for information had been handled.

The complainant disagrees with the application of sections 31, 36 and 41 of FOIA.

Whilst the complainant requested an internal review on 5 May 2023, complaining about the application of sections 31, 36 and 41 (but not section 40), NHS England did not provide one. The Commissioner has used his discretion to accept the complaint without an internal review"

The complainant has requested, from NHS England, a copy of a report on the findings of an investigation relating to the governance and leadership of an NHS Trust, and compliance with its licence.

NHS England disclosed a redacted copy, citing four exemptions to withhold parts of the report. The complainant has challenged the application of sections 31 (law enforcement), 36 (prejudice to effective conduct of public affairs) and 41 (information provided in confidence) of FOIA.

The Commissioner’s decision is that section 31 is engaged and that the balance of the public interest favours maintaining the exemption. He also finds that NHS England breached section 17(1) of FOIA because it failed to issue its refusal notice within 20 working days.

Appeal (37)

"I would like the First-tier Tribunal (Information Rights) to overturn the decision of the Information Commissioner's Office, as set out in decision notice IC-242743-F8R7. "

Evidence and matters considered

the parties' cases set out in the GoA, Responses and Reply

the Bundle including the Report (8-22) in its redacted form and open documents not in the Bundle such as the Assessment

a closed bundle including the unredacted Report

a gist of the closed material provided to the Tribunal and the Appellant

the submissions

information provided in response to Directions

Scope

The provision of the report in redacted form was in reliance on several of the FOIA exemptions, although only Section 31 is relevant to this Appeal."

The Commissioner has said in his decision notice that during his investigation, NHSE’s “…position changed slightly … It extended its application of section 31 to all of the redactions that the complainant is disputing in this complaint.”. He does not explain why this change was made, and gives no indication whether he agreed with NHSE’s reasoning or not.

Because of the Commissioner’s findings in relation to s31, which eventually covered all of the redacted material, he did not address in his decision notice the arguments presented by NHSE and me in respect of s36 and s41 exemptions. This is a pity, as it presumably means that, should the First-tier Tribunal...overturn the Commissioner’s decision... the redactions that cite s36 and s41 would have to be considered afresh; adding further delay to what has already been a lengthy process.

For the record, my arguments against the application of s36 and s41 are presented on pages 2, 3 and 4 of my request to NHSE to conduct an internal review."

FOIA

"(1)Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice...

the exercise by any public authority of its functions for any of the purposes specified in subsection (2),"

"(2)The purposes referred to in subsection (1)(g) to (i) are... (c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise"

Section 36(2) FOIA

"Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act—

(b)would, or would be likely to, inhibit—

...

(ii)the free and frank exchange of views for the purposes of deliberation. or

(c)would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs."

who was the QP?

what was the QPO?

was the QPO reasonable?

if it was a reasonable opinion then in all the circumstances of the case does the public interest in maintaining the exemption outweigh the public interest in disclosing the information?

The PIBT

Section 41 FOIA

it was obtained by the public authority from any other person (including another public authority), and

(b)the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

was the information obtained by the NHSE from a third party, for the purposes of section 41(1)(a) and, if so

would its disclosure constitute an actionable breach of confidence, ie:

did the information have the necessary quality of confidence to justify the imposition of a contractual or equitable obligation of confidence?; if so:-

was the information communicated in circumstances that created such an obligation?; and, if so

would disclosure be a breach of that obligation?;

would NHSE have had a defence to a claim for breach of confidence based on the public interest in disclosure of the information?

Section 40(2) FOIA

"In my opinion there is no presumption in favour of the release of personal data under the general obligation that FOISA lays down. The references which that Act makes to provisions of DPA 1998 must be understood in the light of the legislative purpose of that Act, which was to implement Council Directive 95/46/EC. The guiding principle is the protection of the fundamental rights and freedoms of persons, and in particular their right to privacy with respect to the processing of personal data: see recital 2 of the preamble to, and article 1(1) of, the Directive. Recital 34 and article 8(1) recognise that some categories of data require particularly careful treatment. Section 2 DPA 1998, which defines the expression "sensitive personal data", must be understood in the light of this background."

Tribunal's review and conclusions on Section 40(2) FOIA

Review of Section 31(1)(g) FOIA

"NHS England considers that the withheld information is exempt from disclosure under section 31(1)(g) of the FOI Act which provides that information is exempt information if its disclosure would, or would be likely to, prejudice the exercise by any public authority of its functions for any of the purposes specified in section 31(2).

NHS England considers that section 31(2)(c) is engaged and that disclosure of the information in question would be likely to prejudice the exercise of our functions for the purpose of ascertaining whether circumstances exist which would justify regulatory action in pursuance of an enactment.

The conditions of the NHS provider licence enable NHS England to regulate the economy, efficiency and effectiveness of NHS foundation trusts under Chapter 3 of Part 3 of the Health and Social Care Act 2012 (“the 2012 Act”).

NHS England relies on the full and frank information from trusts in order to carry out its functions effectively. NHS England relies on having a safe space in which providers are freely able to share information in the knowledge that the information, or any analysis derived directly from it, will not be disclosed more widely. To disclose that information more widely is likely to have a detrimental impact on the quality and content of exchanges between NHS England and the bodies it collectively regulates and its ability to make effective and fully informed regulatory decisions."

NHS England has explained to the Commissioner: “Chapter 3 of Part 3 of the Health and Social Care Act 2012 [HSCA]..grants NHS England a range of functions for the purposes of regulating, amongst other providers of healthcare services, foundation trusts via the provider licence regime …

NHS England also told the complainant:

“The conditions of the NHS provider licence enable NHS England to regulate the economy, efficiency and effectiveness of NHS foundation trusts under Chapter 3 of Part 3 of [HSCA]”

The Commissioner’s guidance specifically gives “the administration of a licensing regime (including the revoking of licences where necessary)” as one example of regulatory action...

The Commissioner is therefore satisfied that NHS England has functions for the purpose stated at section 31(2)(c) of FOIA. Regarding the investigation that NHS England commissioned, NHS England is clearly the public authority with power to make a formal decision to take some action."

"32 where an investigation has concluded relatively recently, the likelihood of disclosure affecting the public authority’s ability to gather information from the organisations it regulates remains relatively high."

"Therefore, disclosure would be likely to have an impact on the voluntary supply of information to NHS England, both generally and in terms of the ongoing investigative process that existed in relation to the Trust."

"... open and voluntary provision of information by trusts is necessary if NHS England is to regulate trusts effectively, and that disclosing the redacted information could lead to future investigations being hampered by reticence and/or provision of only minimal information."

"The s.31 exemption has been applied too strictly and the Commissioner has not taken appropriate notice of the inconsistencies between the Assessment and the Investigation"

PIBT – section 31

Arguments in favour of disclosure

the public interest in accountability and transparency as to how NHSE carries out its role and in relation to the services provided by Trusts to support the maintenance of public trust and confidence (33) and because (103)

"The governance processes that lead to the decisions behind these changes are frequently opaque, which adds to the sense that the concerns of some stakeholders in local communities are not being democratically addressed."

to enable there to be a better an understanding of how the Report's conclusions and recommendations were reached (23) and what the issues were that lead to the Report being commissioned (84)

because "It may (or may not) inconvenience NHS England, in the future exercise of their regulatory function, to publish some of the section 31 redactions, but the public interest test in this instance is not about the relative ease or difficulty of conducting a future investigation." (23)

because "the information concerns the governance of a public authority, and an investigation and formal report involving public money" (33)

because there is a suspicion (held at least by the Appellant) that the redactions have been made to avoid embarrassment in some quarters and so disclosure is in the public interest to ensure they are held to account (33)

to ensure any inconsistencies (apparent to the Appellant) between the Report and the Assessment are clarified (33)

to be able to understand why problems arise and how they can be resolved (103)

(103) because of the need for there to be transparency about a growing trend of NHS organisations:-

"...amalgamating their senior leadership positions, such that multiple hospital trusts (for example) are led by a single CEO and boards share a single Chair....many of these changes are contentious and subject to challenge by trust governors, staff and the general public."

"... the public interest test in this instance is not about the relative ease or difficulty of conducting a future investigation" (23)

"My view is that the public interest is served by a broader and more profound consideration: trust in public authorities to be open and transparent about the outcomes of investigations, especially where those outcomes result major changes to the management and governance of the organisation that is subject to the investigation."

and

“It is … entirely in the public interest that the full facts, as contained in the Governance Investigation Report, should be known, for the sake of clarity and fairness, but also as a basis for improved governance. The NHS is sadly no stranger to examples of institutions which have failed in their responsibilities, and which have escaped regulation or censure until a crisis has happened – precisely because they hid their failings for fear of reputational damage. The application of this FOI exemption, in this case, amounts to the very opposite of the transparency which should be in place.”

"In a nutshell, my view is that the Commissioner has taken at face value NHSE’s special pleading about the effect of disclosure on its future regulatory effectiveness, and has not considered sufficiently the public interest involved in a regulator demonstrating transparency in its use of evidence and decision making."

Arguments in favour of maintenance of the exemption

because the appropriate desire for accountability and transparency is met by disclosure of the redacted version of the Report (2)

"the strong public interest in NHS England being able to oversee and regulate trusts effectively, and the need to ensure that trusts are able to share confidential or otherwise sensitive information with NHS England without concern that such information will enter the public domain" (2)

to support the statutory role of NHSE by maintaining an open "strong and balanced" relationship with Trusts and to protect the trust and confidence of those who engage with NHSE.

to prevent there being an "adverse impact upon the quality of information that trusts provide us since they would be likely to provide us with the minimal information required to respond to our information request. This would also reduce the efficiency and quality of our regulatory decision making process."

to preserve NHSE's ability "to perform its statutory functions as robustly and effectively as possible..."

because of the strong public interest in protecting the ability of NHSE to enforce the law (34)

to protect the voluntary cooperation between regulators and those being regulated and that "there is a public interest in not deterring the voluntary supply of information, even where the public authority has the power to compel a party to supply information."(34)

because (85) "the withheld information would add little value to what has already been disclosed in the Regulatory Assessment and redacted version of the Report."

"In considering the circumstances which led NHS England to commission the Investigation, the challenges being faced at the Trust and potential inter personal difficulties, disclosure of the withheld information had the potential to make a fragile situation worse. Evidently the Report reveals some significant challenges in the way in which the appointment of a joint CEO was being progressed, and although NHS England acknowledges the public interest in generally understanding what the issues were and what was being done to resolve them, disclosure of some of the specific details in the Report would have been likely to lead to a deterioration in the situation at a time when NHS England and the Trust were trying to resolve it"

Tribunal's conclusions on section 31(1)(g)

"During the Commissioner’s investigation of the Appellant’s complaint, NHS England extended its application of s. 31 FOIA to all of the withheld information."

Review of Sections 36(2)(b)(ii) and 36(2)(c)

"NHS England argues here that disclosure of some material redacted under section 36 would somehow lead to less effective conduct of public affairs, because such disclosure would cause public authorities to be more cautious in their disclosures in future, and to be less open and transparent. This argument seems to me to be flawed from the outset."

PIBT- section 36

Arguments in favour of disclosure

openness and transparency in relation to decisions made by public bodies (4) and openness and transparency in particular as regards decisions involving the NHS

to be able to demonstrate that concerns are taken seriously with appropriate action is being taken (244)

(244) to enable the public to see that "authorities are working together in a joined up way to take any necessary action to improve concerns regarding NHS Trusts."

because in the view of the Appellant (see 23 and his submission of 7 September 2024)

"it is prejudicial to the effective conduct of public affairs not to provide the redacted information. The Governance Investigation Report was commissioned by a public authority, using public funds, to investigate another public authority. Widespread redactions in a report that was used as the basis for a very public ‘Regulatory Assessment’ by NHS England, published in September 2022, only gives the impression of a lack of transparency and accountability; in that it is no longer clear how the Regulatory Assessment reached its conclusions. This, in itself, serves to undermine confidence in the effective conduct of public affairs."

because in the view of the Appellant (see para 13 of his submission of 7 September 2024) open and strong relationships between regulators and those being regulated:-

"...are enhanced, not undermined, by open publication of reports and investigations by regulators. This is how organisations learn to govern themselves better (it also helps regulators to regulate better) and it builds public confidence that, if there are challenges and problems with the management of public sector organisations, they will be acknowledged and acted upon. "

and

"Multiple and frequent redactions only lead to suspicions that certain facts are being withheld for reasons potentially linked to embarrassment or internal convenience. This in itself is a corrosive factor that can prejudice the effective conduct of public affairs"

Arguments in favour of maintenance of the exemption

"...the strong public interest in NHS England being able to work together effectively with other healthcare organisations. "(4)

that the public interest is better served "where public authorities are able to have good quality decision making, which will translate into higher quality services for patients."(4)

(88) "the public interest in maintaining a strong relationship with those it regulates, ensuring those it regulates have a safe space to openly converse with NHS England and ensuring that NHS England’s regulatory functions are not jeopardised, outweigh the public interest in disclosure"

to avoid the prejudice referred to in the QPO (243) such as

the likely prejudice to the "ongoing discussions and the effective relationship between NHS England and the Trust in question "

any undermining of the ability for there to be an honest and open exchange of information between NHSE and those it regulates

to avoid more cautious disclosures and the reduction of the provision of information that could hinder decision making

the likely prejudice to live ongoing discussions

the risk that disclosure could lead to

"Less informed decision making [which] would in turn lead to a lower quality health service for the public and patients in the region of this Trust.

Tribunal's conclusion on section 36(2)

Review of Section 41 FOIA

"...exempted some information under s. 41(1) FOIA, on the basis that some of the withheld information was provided to NHS England in confidence and disclosure of that information would constitute a breach of that confidence."

"The information was obtained through interviews which were conducted in confidence" (89)

"The withheld information was obtained through interviews, which were conducted by an investigator who was commissioned under specific terms, including that the Investigation was to be conducted in strict confidence (80)"

"Those individuals who were interviewed as part of the Investigation did so under the expectation that their confidentiality would be maintained (80)"

"It is also clear to NHS England that those who were interviewed did so with an expectation of confidentiality by virtue of the fact that they provided candid and frank information and views"

"It was understood by all parties (i.e. the investigator, trust staff and NHS England) that such information was sensitive and submitted in confidence with the sole purpose of fact finding for the investigation. For this reason, we believe that section 41 of the FOI Act applies to parts of the requested information. (5)"

There was a high degree of cooperation and openness from all parties involved (emphasis added)

The Report does not seek to attribute comments to any individual unless critical to understanding the issues and findings

"It is standard practice for NHS England to ensure that any information provided to it in confidence as part of its regulatory functions will be kept confidential. NHS England’s Enforcement Guidance specifically sets out that any confidential information obtained as part of its regulatory functions will be handled “with great care” and only shared more widely “to the extent strictly necessary for the intended purpose” (para. 91, NHS England’s Enforcement Guidance)"

"Significant harm may be caused to the legitimate commercial interests of an ICB or provider, or to NHS England’s ability to carry out its functions, if confidential information relating to the ICB or licensee or confidential regulatory information is disclosed. For these reasons, NHS England handles confidential and sensitive information with great care, ensuring that it is only used for appropriate purposes and that it is shared within NHS England or more widely only to the extent strictly necessary for the intended purpose."

" But NHS England must not include information which it is satisfied is—

commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of the person to whom it relates;

information relating to the private affairs of an individual the disclosure of which would, or might, significantly harm that person's interests."

" I agree that Trust staff would have had an expectation of confidence in relation to the detail of the interviews that were conducted and any documentary evidence they presented."

"However, they understood very well that the evidence they provided was to be used in the investigation, and I do not accept that they would have reasonably expected the overall findings of the investigation – suitably anonymised, if necessary – to be kept confidential."

and he referred to the Assessment as published "which uses much of the text of the Governance Investigation "

"NHS England considers that disclosure of the information I have requested could lead to confiders bringing an action for breach of confidence against NHS England and that it could succeed. I question whether this is, in fact, the case.

First, confiders had a reasonable expectation that the detail of the evidence they supplied, in the form of interview transcripts, personal notes, emails and other forms of communication, would be held in confidence. So it should be, and I have not asked for publication of this kind of information.

Second, it would also be a reasonable expectation that a report of the findings would be anonymised such that personal views or elements of evidence could not be attributed to any particular person or group, except where absolutely necessary. I would be surprised if this condition was not applied by the report’s author(s).

Third, where information had to be attributed to a particular individual or group, it would be standard practice to explain this to the person or people in question, and to obtain their agreement to public disclosure. If this did not happen, I consider this to be a failing on the part of NHS England and/or the author(s) of the Governance Investigation Report."

Tribunal's conclusion on section 41

the information had been obtained by NHSE from a third party and, if so

if its disclosure would constitute an actionable breach of confidence, ie:

did the information have the necessary quality of confidence to justify the imposition of a contractual or equitable obligation of confidence?; if so:-

was the information communicated in circumstances that created such an obligation?; and, if so

would disclosure be a breach of that obligation?;

and then, where needed, whether NHSE would have a defence to a claim for breach of confidence based on the public interest in disclosure of the information?

it is information received from identifiable people

the information in our view does have the necessary quality of confidence to justify the imposition of an obligation of confidence because it stems from a process which we consider to be confidential

the information is likely to have been communicated in circumstances that created such an obligation

in our view disclosure would be a breach of that obligation for which NHSE would not have a public interest defence.

Decision

remains entitled to maintain the redactions on the cover sheet and at paragraphs 1.1, 1.8, 2.17, 3.16-3.18, 3.22 a name in 3.24, 3.25, 3.31- 3.51 and 4.6.

is required to disclose the previously withheld information in the Report at paragraphs 2.15-2.16, 3.13 -3.15, 3.23, 3.24 (save for the name in 3.24), 3.26, 3.61-3.63, 4.1- 4.5, part of 4.13 and 4.14.