freedom of information.co.uk

March 29th 2005

The Department of Health has been accused of breaching the Freedom of Information Act by trying to prevent NHS organisations releasing details of IT contracts.  In a memo issued by the Department’s National Programme for IT in the NHS (NPfIT), health authorities and trusts are urged to refuse requests under the Act for details of the multi-billion pound contracts.

The memo, which was obtained by Computer Weekly magazine, said the NPfIT was considering the release of edited versions of some commercial documents, but added that in the meantime it  ‘expects strategic health authorities and trusts to withhold information which relates to the NPfIT commercial arrangements from disclosure when handling requests for access to this information under the Freedom of Information Act.’

Among the material that should be withheld, according to the memo, are: details of disputes with, and breaches of contract by, suppliers; discussions about contract revisions; and details of the financial penalties the NHS would face if it failed to meet contractual obligations.

The guidance also suggests exemptions that NHS organisations can cite in refusing information requests. Although the Act allows public authorities to withhold commercial information if its release would constitute an actionable breach of confidence, or if it would otherwise be commercially prejudicial, such decisions should be made by local organisations, with each case decided on its merits. 

Commenting on the memo, solicitor Lewina Farrell, of Tarlo Lyons, told Computer Weekly “This sort of instruction would not be appropriate.” And Dai Davis, of law firm Nabarro Nathanson, pointed out that that, having had four years to prepare for the Act, officials should by now have decided what information about the NPfIT should be withheld.

The Lord Chancellor’s FOI Act Code of Practice requires public authorities to reject ‘wherever possible’ confidentiality clauses in contracts with private suppliers.  It adds, ‘Where, exceptionally, it is necessary to include non-disclosure provisions in a contract, an option could be to agree with the contractor a schedule of the contract which clearly identifies information which should not be disclosed.’ 

Guidance on the release of commercial information, issued by the Department for Constitional Affairs, draws upon the experience of the Republic of Ireland, which introduced FOI legislation in 1998.  While  cautioning that care should be taken not simply to read across from the Irish experience, it states: ‘The picture in Ireland tends to support the view that the public interest in the disclosure of procurement related information is not sufficiently strong to override the harm that may be done to commercial interests before the award of the contract.’  However, it goes on, ‘The public interest in making available information after the award of the contract - such as the total tender price and evaluation details of the successful tenderer, along with information about the fee rates and other details necessary to understand the nature of the services contracted - was found to be much stronger.’

The NPfIT, which involves £6.2 billion worth of IT contracts, is the world's largest civil computer programme.  In a statement the Programme said, ‘Individual public authorities, including NHS bodies, are responsible and accountable for their own actions under the Freedom of Information Act.  That is why the memo was issued, merely as guidance. It talks in terms of our expectations, not of our requirements. The memo does not 'instruct trusts to refuse all requests about the NPfIT'. The introduction spells out the fact that it relates specifically to 'requests for disclosure of commercial arrangements with NPfIT prime contractors', and in the final paragraph mentions the possibility of future guidance about requests for NPfIT information other than about commercial arrangements.’