The Department of Health and Social Care v The Information Commissioner & Anor

The powers of the Tribunal in determining appeals against the Commissioner’s decisions for the purposes of FOIA are as follows:

Before the hearing, the parties had submitted written evidence. This comprised an Open Bundle of 144 pages (including an Index). The panel also had access to a Closed Bundle. Further materials in the public domain (such as Written Ministerial Statements, Press Releases and a response to a FOIA request of HMRC – as referred to below) were also considered.

William Vineall, Director of NHS Quality, Safety and Investigations, gave oral evidence on behalf of DHSC in an Open session of the hearing (summarised below), and also during a Closed session (summarised in the confidential annex to this decision). Mr Vineall also answered questions from the Commissioner, Mr Evans and the panel.

In summary, Mr Davidson on behalf of the Commissioner invites the Tribunal to dismiss the appeal for the following reasons:

In summary, Mr Evans submits that the Decision Notice was correct, and the appeal should be dismissed because:

Mr Vineall accepts the strong public interest in transparency, particularly in the case of Infected Blood in understanding what went wrong, and how the compensation scheme will provide justice and redress to vulnerable people harmed whilst in the care of the state.

The Inquiry was instigated to get to the bottom of what went wrong and to ensure that it never happens again. There is therefore also strong public interest in the public knowing what the government will do when the Inquiry reports.

Much information is already in the public domain such as the Inquiry’s Interim report in July 2022; the government’s response in August 2022; the interim payments made in October 2022; a policy paper released in October 2022 with the government’s thinking on these payments; and a statement on the tax treatment of those payments.

The policy on interim payments and the overall compensation scheme are intrinsically and inextricably linked because policy work is ongoing in respect of any further interim payments and final compensation.

Interim payments were made to infected people and affected partners (in all four nations of the UK) but how the government responds when the Inquiry’s final report is published is yet to be established. The ‘moral case’ for compensation is accepted: the government’s response to the Inquiry’s final report is pending its publication in late May this year.

The interim payments made in October 2022 were to those people registered with the various schemes – and they comprise the same cohort of people as today plus those newly registered with the schemes in the meantime but excluding those since deceased. In some circumstances, the estates of those deceased have received or will receive payments.

The link between development of the policy for interim payments made in October 2022 and other compensation is components such as the role of different Departments; the procedure for reaching decisions; how the funding is determined; the consequential tax treatment; and fraud considerations. All these issues had to be decided for interim payments and will all be relevant to the future compensation scheme too. The precise resolution of those issues is not in the public domain.

Were the processes, mechanisms and views which led to the decisions on interim payments to be disclosed, that would consolidate expectations which may be different from what the government has already said in public.

It is important that government can discuss confidentially and openly all component parts of the policy in a safe space so expectations are not created in relation to those component parts for future payments.

While the public knows that interim payments were made – how much and when – they do not know how or why. This is sensitive information, the disclosure of which would prejudice decision making in the future.

As for the s.28 exemption, the withheld material would prejudice relations between the UK administrations and should therefore not be available to the public. The impact of Infected Blood affects the whole UK and arose when there was one, not devolved, administration of health matters. Now the responsibility for schemes and payment of compensation is separate. The government made very clear in March 2021 that it wanted consistent schemes in the four nations, so discussions between the four nations is sensitive, nuanced and important to them all.

The gist of evidence heard in Closed Session was shared in a final Open Session in the following terms:

There does not appear to be any material dispute between the parties on the law.

DHSC does not pursue its reliance on s.31 FOIA (Law enforcement).

DHSC relies primarily on Grounds One and Two which concern s.35 FOIA (see paragraph 18 (a)-(h) above).

There is concern that ongoing public analysis of internal correspondence will result in civil servants being inhibited in future correspondence for fear of it being later disclosed. However, it is in the public interest for such discussions to be recorded in writing to ensure accuracy and a comprehensive archive. If, however, there is a risk of later disclosure there is also a risk that communications will not be committed to writing when they should be – and/or that civil servants will be more cautious about the ways in which they express themselves to colleagues.

The Commissioner is correct that s.35 and s.36 FOIA are mutually exclusive. However, as noted in Coppel at §31-005, the effect of this exclusion is slim in practice. In this case, as in many, ‘the outcome of the balancing exercise may turn out to be no different whether s.35 or s.36 is applied.’

For Ground One, as Mr Vineall’s evidence illustrates, the interim payments are so closely related to the compensation scheme more generally that policy matters relating to the former are still ‘live’. DHSC considers this a weighty factor to be taken into account. Mr Vineall has expressed concern that continuing policy development and collective responsibility will be adversely affected by disclosure of the requested information.

The basis for Ground Two is that there is no material distinction between the discussion of interim payments and the compensation scheme as a whole: they are intrinsically linked.

In reality, the question is what prejudice would result if the information were disclosed? This is a fact sensitive issue – not a binary question of whether or not the policy making is the same for interim payments and the compensation scheme as a whole.

The parties dispute whether the opinion of the qualified person on which DHSC relies is a ‘valid opinion’.

The Tribunal’s task is to assess whether an opinion is substantively reasonable – not whether the qualified person gave the matter proper rational consideration in the formation of their opinion (though DHSC invites the Tribunal to conclude that in this case that there is evidence that the Minister did do so).

Mr Vineall’s evidence supports the Minister’s opinion being substantively reasonable.

Mr Vineall is an experienced and senior civil servant with particular expertise in the intricacies of cross-government decision making including relationships with the devolved administrations.

While the Tribunal must not follow the evidence of the government blindly and must subject it to appropriately anxious and independent scrutiny, the courts have recognised that they ‘do not have personal experience of the diplomatic consequences of disclosure and that, as a result, the Tribunal must in such cases rely more on the evidence and less on its own experience in assisting the balance of the public interest’: Coppel on Information Rights, 6^th Ed. §27-008 citing FCO v the Commissioner and Plowden [2013] UKUT 275 (AAC).

The Tribunal is invited to give due deference to Mr Vineall’s assessment of the impact which disclosure would have on relations between the government and the devolved administrations.

His evidence is that ‘it is essential that all four administrations are confident that they can communicate with one another directly and candidly and that confidentiality of their communications will be respected.’ He goes on to explain the effect of disclosure of the withheld material in this case.

The panel first went on to consider the possible unfairness of withholding certain information from Mr Evans.

Mr Evans has been provided with only some of the information falling within the scope of his request. The Tribunal permitted other information to be withheld from both Mr Evans and the public pursuant to GRC Rule 14.

For the purposes of the hearing, the panel was also provided with a Closed Bundle containing the withheld information and written evidence from Mr Vineall on behalf of DHSC. The panel also heard oral evidence from Mr Vineall in a Closed Session of the hearing.

The panel takes account of the Tribunal’s Practice Note on Closed Material. This explains that, where disclosure of the disputed information would defeat the object of the exercise, the law permits the Tribunal to deviate from the normal rule about all material seen (and also heard, in this case) by the Tribunal being available to all parties. However, such deviation is permissible only so far as is necessary to ensure that the purpose of the proceedings is not defeated.

The panel accepts that there is inevitably some prejudice in material being withheld from a party requesting it, but considers that this prejudice is mitigated by:

the Tribunal’s expertise, and exercise of an investigatory rather than adversarial function;

Having considered all these matters and having carefully read the withheld information, the panel is satisfied that withholding the requested information – and the evidence heard during Closed Session - was and remains necessary to ensure the purpose of the proceedings is not defeated. Moreover, the prejudice to Mr Evans’ position – mitigated as described above – is justified in the interests of justice overall.

For the avoidance of doubt, the panel renews the Tribunal’s direction that all withheld information (and evidence given during the Closed Session) remains confidential under GRC Rule 14 until 35 days after the promulgation of this decision or, if later, until the hearing of any appeal against this decision.

The panel went on to consider the relevant facts of this case. Based on all the evidence the panel has seen and heard, the panel has made the following findings of fact as emboldened below. Where a fact is disputed, the reasons for the panel’s findings are set out in unemboldened text:

Having made the above findings of fact, the remaining issues for the panel in this case are (a) whether the Commissioner made any error of law in the DN and (b) whether the Commissioner wrongly exercised his discretion.

DHSC does not suggest there is any error of law, nor does Mr Evans.

The panel is satisfied that there is no issue of law in this case save for whether the exemptions in s.28 and/or s.36 FOIA are engaged.

Having reviewed with ‘appropriately anxious and independent scrutiny’ DHSC’s ‘closed’ submissions, Mr Vineall’s ‘closed’ evidence and giving due deference to DHSC’s opinion on these matters, the panel does not consider that disclosure of the withheld information would – or would be likely to – prejudice the UK Government’s relations with any of the devolved institutions.

The panel therefore considers that s.28 is not engaged in this case.

However, to preserve a meaningful right of appeal, the panel does not set out here DHSC’s ‘closed’ submissions nor Mr Vineall’s ‘closed’ evidence on this issue. However, Mr Vineall’s ‘closed’ evidence and the panel’s reasoning on this point is set out in the confidential annex to this decision.

All parties agree that s.35 and s.36 FOIA are mutually exclusive: s.36(1)(a) explicitly applies only to information held by a government department which is not exempt information by virtue of s.35.

In this case there is no dispute that s.35 is engaged. Thus s.36 would apply only if the withheld information is, however, not exempt under s.35 i.e. because the public interest test applied to the s.35 exemption weighs in favour of disclosure of the information rather than maintaining that exemption.

If that were the case, bearing in mind DHSC’s submission at paragraph 36 above, it is difficult to see that how the public interest test if applied to the s.36 exemption would weigh any differently.

The panel considers that s.36 is not engaged in this case.

In case the panel is wrong about this – such that s.36 might be engaged in relation to those parts of the information which we conclude is not exempt under s.35 – we went on to consider the Minister’s opinion dated 26 October 2023.

We note that the Minister does not give any specific examples of why and in what respects disclosing the information in this particular case would, or would be likely to, prejudice the effective conduct of public affairs or would, or would be likely to, inhibit the free and frank provision of advice or exchange of views.

Because of this, we are doubtful that s.36 is engaged even if s.35 is not – but even if s.36 is engaged, we do not consider the Minister’s opinion adds any great weight to the public interest balance discussed below.

All parties and the panel acknowledge that if the s.35 or s.36 exemption is engaged, the public interest test must then be applied (the absolute exemption conferred by s.36 for information held by the House of Commons or the House of Lords does not apply). Information can be withheld only if the public interest in maintaining the exemption outweighs the public interest in disclosure.

The panel recognises that, in general, there is often likely to be significant public interest in disclosure of policy information, as it is likely to promote government accountability, increase public understanding of the policy in question, and enable public debate and scrutiny of both the policy itself and how it was arrived at.

In a case such as this – involving Infected Blood and deaths since the 1980s of hundreds if not thousands of vulnerable citizens in the care of the state – the panel considers that the public interest in matters relating to Infected Blood is extremely high.

The panel recognises that the imminent publication of the Inquiry’s final report and recommendations renders policy discussions about compensation payments, including interim payments, particularly sensitive. However, that does not in the panel’s view fundamentally affect the engagement of the exemptions claimed by DHSC nor more than minimally affect the public balancing exercise in determining whether engaged exemptions should be maintained or whether the information should be disclosed.

The panel considers that much of the information requested is either in the public domain through press releases, Ministerial statements etc. or is already known because the interim payments have been made.

Further, the panel considers that senior civil servants of all administrations within the UK – including those involved in the exchanges of emails sought by the request - can be taken not only to be robust in their communications but also fully aware of the likelihood of email correspondence being disclosable in response to FOIA requests, litigation or to the Inquiry.

We therefore attach little weight to concerns that disclosure of the withheld information would or might cause harm to the maintenance of collective responsibility, the free and frank provision of advice or exchange of views or otherwise prejudice the effective conduct of public affairs.

The panel notes the ICO’s guidance that the relevance and weight of the public interest arguments will depend entirely on the content and sensitivity of the particular information in question and the effect its release would have in all the circumstances of the case. Each case must be considered on its facts.

In this case, having carefully considered both the content and sensitivity of the withheld information - and DHSC’s evidence and submissions (both open and ‘closed’) on the effect of its release - in all the circumstances the panel considers that it was legitimate for the Commissioner to order disclosure of most of the withheld material notwithstanding that the requested information:

The panel does not accept DHSC’s arguments that public assumptions or expectations about policy for further or final compensation payments renders policy decision-making about interim payments already made as ‘formulation or development of government policy’. We accept the Commissioner’s submissions that, in this case, the government has been actively managing expectations as to future payments. Further, we would expect that whatever its response to the Inquiry’s final report and recommendations, the government will go to considerable lengths to explain how and why its response is similar to or different from its response to the interim report.

While paying due deference to DHSC’s arguments and Mr Vineall’s evidence, the panel does not accept that the factors in favour of maintaining the exemption outweigh the exceptionally strong public interest in disclosing the information.

Overall, the panel agrees with the Commissioner’s conclusion that, bearing in mind the nature of the information withheld, the public interest in disclosing the withheld information outweighs the public interest in maintaining the exemptions in s.35 or s.36.

For completeness, the panel confirms that it is not in dispute in this case that certain of the withheld information is:

For the avoidance of doubt, withheld information falling within any of the categories in paragraph 80 above is not to be disclosed.

For the reasons set out above, the panel finds that the Commissioner’s DN was neither wrong in law nor did he wrongly exercise his discretion save in respect of some very limited material which he ordered to be disclosed and which the panel concludes should not be disclosed. Accordingly, the appeal is dismissed save to that limited extent and a substituted decision notice is included in the confidential annex to this decision. The confidential annex will be provided to the DHSC and Commissioner only.

The substituted decision notice specifies the information which the panel has determined can be withheld and that which must be disclosed. Necessarily this involves the contents of the actual information being withheld, hence it remains confidential for 35 days from promulgation of this decision or, if later, until the outcome of any appeal of this decision.

In the meantime, and pending the outcome of any further appeal, as indicated above all ‘closed’ material shall remain confidential under GRC Rule 14.