Effect of NHS reforms on FOI rights

The Campaign for Freedom of Information has written to the Health Secretary, Andrew Lansley, expressing concern that the public's rights to information about the NHS are likely to be "increasingly constricted" by the reforms in the Health and Social Care Bill.

Under the reforms, NHS services will be provided either by NHS bodies or by independent providers under contract. The NHS bodies which commission services will themselves be subject to the FOI Act though the independent providers will not. However, the providers will be contractually required to provide information to the commissioning bodies to help them answer FOI requests.

The standard NHS contract already contains a clause requiring providers to do this. But according to the Campaign, the clause appears to apply only to the specific information which the contract itself requires a provider to hold or report on. While numerous items of information are specified – for example, about the quality of the service, treatment times, complaints, MRSA infections and other matters - it does not cover the full range of information that would be available under FOI from an NHS body itself.

In the letter, the Campaign calls on the government to extend the disclosure provision so that FOI rights in relation to independent providers’ NHS work is as wide as that of NHS bodies themselves. The Campaign director Maurice Frankel says:

“Suppose there is concern about the use of potentially contaminated medical supplies by hospitals. For an NHS hospital, the FOI Act could be used to obtain details of stocks of the product, the number of doses administered, the numbers of affected patients, the quality control measures in place, correspondence with suppliers, minutes of meetings at which the problem was discussed and information showing what measures were considered, what action was taken, how promptly and with what results.

This level of information would clearly not be available in relation to independent providers treating NHS patients. This would represent a major loss of existing information rights."

Read the letter here.

Welcome for greater online disclosure - but concern that contracting out will encourage greater secrecy

Press release 4 August 2011

The government’s plans, announced today, to publish more information online about the quality of public services was welcomed by the Campaign for Freedom of Information. “The more that is published proactively, the less opportunity there will be for individual authorities to resist disclosure when the figures show that their performance is poor” the Campaign said.

But the Campaign said that some government policies, risked undermining openness. It highlighted the large-scale contracting out of local authority functions proposed by the Localism Bill. “The more council functions are carried out by contractors, the harder it is to rely on the Freedom of Information Act to scrutinise what is being achieved. There are potential solutions to this, which the government is so far refusing to support. Someone making an FOI request to the council should be able to obtain any information about the contract held by the contractor, unless it is exempt. At the moment, access can be blocked by a confidentiality clause agreed between the contractor and council.”

FOI amendments pressed during Localism Bill

The Campaign for Freedom of Information has been working on amendments to the Localism Bill tabled by Lord Wills, the former Labour FOI minister. The amendments sought to:

1) Require local authority executives and their committees to meet in public, unless regulations specify otherwise. The Localism Bill amends the arrangements for local authority governance, allowing councils to return to the committee system should they choose to do so. For authorities which operate executive arrangements, the Bill allows for new regulations to be made governing the circumstances in which meetings and documents must be open to the public (Clause 11 of the Localism Bill gives effect to Schedule 2 which inserts a new Part 1A into the Local Government Act 2000, and the proposed section 9GA(4) of that new part provides for these regulations to be made). But if the regulations are not made before the new arrangements come into force, the Bill would leave it to executives themselves to decide which of their meetings will be open to the public and which will be held in private (Sections 9G(1) and (2) of the new part 1A). They would be free to hold all their meetings in private, should they choose to do so. The amendment sought to reverse this position, so that in the absence of regulations, all meetings of the executive or its committees would have to be in public.

2) Ensure that future contracts entered into by local authorities would include a ‘freedom of information’ provision. This would stipulate that all information about the performance of the contract which is held by the contractor would be deemed to be held 'on behalf of' the authority for the purpose of the Freedom of Information Act or Environmental Information Regulations. The ‘Community Right to Challenge’ in Chapter 3 of the Localism Bill envisages that a growing proportion of local authorities’ functions will be carried out for it by other bodies. The intention of the amendment is that the public’s rights to information should be the same, whether a particular task is carried out in-house or contracted out.

3) Bring companies that are 50% or more owned by local authorities within the scope of the FOI Act. At present the FOI Act applies to companies that are wholly owned by a single public authority. The Protection of Freedoms Bill would extend that definition to cover a company which is wholly owned by more than one public authority. However, a company which jointly owned by a public authority and some other body, perhaps a private company, is not subject to the FOI Act at all, even where the public authority is the dominant shareholder. The amendment would bring such companies within the Act’s scope.

4) Require local authorities to publish annual statistics on their compliance with the FOI Act.

5) Bring the Housing Ombudsman within the scope of the FOI Act. At present, complaints about social housing matters are dealt with by two different ombudsmen. Complaints about housing associations go to the Housing Ombudsman; complaints about local authority housing go to the Local Government Ombudsman. The Localism Bill proposes that in future a unified complaints system should apply, with both types of complaint going to the Housing Ombudsman.

This transfer of functions, may be accompanied by a strengthening of the Housing Ombudsman’s enforcement powers. The Bill allows the Secretary of State by Order to give the Housing Ombudsman the power to make determinations which have the force of a court order (New paragraph 7C, which would be added to Schedule 2 of the Housing Act 1996 by clause 158 of the Localism Bill). Surprisingly, the Housing Ombudsman is not subject to the Freedom of Information Act. The Localism Bill contains no provision to bring the Ombudsman under the Act, despite the fact that the Housing Ombudsman is to take over important responsibilities from the Local Government Ombudsman, who is subject to the FOI Act. The amendment would redress this anomaly.

The amendments were debated during the second day of the Bill’s committee stage on Thursday 23 June 2011. Responding to the debate, the minister Baroness Hanham gave a reassurance that the Government would make it clear there is a presumption of openess regarding meetings of local authority executives. But she did not support any of the other amendments.

I cannot say anything more than that we are very much in favour of open access to meetings of local authorities, but we recognise that there are occasions when confidential information has to be discussed – for example, information on contracts and members of staff. Meetings have to be closed sometimes, but we will make it clear that there has to be a presumption in favour of openness… 

We do not believe that it is necessary to extend the Freedom of Information Act to those bodies at present with information about contracts with public authorities, which can be requested from them. A local authority can be quizzed about any contract that it has and we are proactively publishing contractual information online.

Amendment 133C would introduce a statutory requirement for the publication of an annual report by every local authority, including the smallest parish councils receiving very low volumes of freedom of information requests. We do not think that this is a burden that should be borne...

Finally, on extending the Freedom of Information Act to cover the Housing Ombudsman, it is worth noting that we are planning to extend the Act to a considerable number of new bodies through legislation and we intend to keep those under review. While I do not say “in”, I do not say “out” at the present time.

In reply, Lord Wills pressed the minister to consider the amendments again in more detail.

I am grateful to the Minister for the spirit in which she engaged with these amendments. However, her response was not quite as welcoming instinctively as I would have hoped, so I ask her to scrutinise the amendments in more detail and perhaps to consult the noble Lord, Lord McNally. I do not say that because I discount any possible burdens put on local authorities or contractors or businesses. As someone who ran a small business in the past, I am deeply conscious of the need to avoid putting burdens on small businesses. These amendments were framed not to place a disproportionate burden on anyone. Perhaps on closer scrutiny that will become apparent.

I am willing to accept any suggestions for amendments and I am sure that the Government would be able to improve the drafting. The key point that I ask the Minister to take away is that, if the Government do not engage with the issues behind these amendments…that will mean, potentially, over time, a significant diminution of transparency in the operation of local authorities and those whom they contract to provide services for them. That is very serious for those who believe in freedom of information. It is in breach of a fundamental tenet of the coalition agreement, which is why I hope that this Government will take it seriously.

Read the full debate on the amendments here (begins Col 1433).

See also:
Localism Bill Explanatory Notes [HL Bill 71] ) (pdf)
Second Marshalled List of Amendments as at 21 June. Lord Wills' amendments were 52A, 133A, 133B, 133C and 181A.

Government to publish new data on health, schools, courts and transport

The Government has announced the next stage in its transparency agenda with a commitment to publish key data on the NHS, schools, criminal courts and transport. The new commitments are set out in a letter from the Prime Minister to Cabinet colleagues.

In his letter, the PM said transparency was "at the heart of the Government's agenda".

"We recognise that transparency and open data can be a powerful tool to help reform public services, foster innovation and empower citizens. We also understand that transparency can be a significant driver of economic activity. These commitments represent the most ambitious open data agenda of any government in the world."

The letter commits the Government to publishing the following new data sets:

NHS

• Data on comparative clinical outcomes of GP practices in England to be published by December 2011, following the lead of the NHS in London which has agreed a set of 22 indicators with local GPs.
  
• Prescribing data by GP practice to be published by December 2011, as per the Growth Review.
  
• Complaints data by NHS hospital so that patients can see what issues have affected others and take better decisions about which hospital suits them. This commitment will be met by October 2011.
• Clinical audit data, detailing the performance of publicly funded clinical teams in treating key healthcare conditions, will be published from April 2012. This service will be piloted in December 2011 using data from the latest National Lung Cancer Audit, commissioned by the Healthcare Quality Improvement Partnership (HQIP) as part of the National Clinical Audit and Patient Outcomes Programme (NCAPOP).
  
• Data on staff satisfaction and engagement by NHS provider (for example by hospital and mental health trust) will be published from December 2011.
  
• Data on the quality of post-graduate medical education by provider from April 2012.

Education and skills

Data enabling parents to see how effective their school is at teaching high, average and low attaining pupils across a range of subjects, from January 2012.

• Opening up access to anonymised data from the National Pupil Database to help parents and pupils to monitor the performance of their schools in depth, from June 2012. This will enable better comparisons of school performance and we will look to strengthen datasets in due course.
  
• Bringing together for the first time school spending data, school performance data, pupil cohort data and Ofsted judgements, from January 2012, in a parent-friendly portal, searchable by postcode.
  
• Data on attainment of students eligible for pupil premium to be published from January 2012.
  
• Data on apprenticeships paid for by HM Government, by organisation and by success rate to be published from July 2011.

Criminal justice

• Sentencing data by court will be published by November 2011, enabling the public to see exactly what sentences are being handed down in their local courts, and compare different courts on a wide range of measures. The data, anonymised, will include the age, gender and ethnicity of those sentenced, the sentence given, and the time taken at each stage from offence to completion of the case in court.
  
• Data on performance of probation services and prisons including re-offending rates by offender and institution. To be published from October 2011.
  
• From May 2012, the national crime mapping website, Police.uk, will provide the public with information on what happens next for crime occurring on their streets, i.e. police action and justice outcomes.

Transport

In addition to opening up data owned by DfT and its arms length bodies, we are committed to working with the transport industry and data users to make public transport data open and freely available for re-use. Over the next year we will deliver:

• Data on current and future roadworks on the Strategic Road Network to be published from October 2011, and subject to consultation to extend this during 2012 to Local Authority Streetworks Registers maintained under statute.
  
• All remaining Government-owned free datsets from Transport Direct, including cycle route data and the national car park database to be made available for free re-use from October 2011.
  
• Real time data on the Strategic Road Network including incidents, speeds and congestion to be published from December 2011. Office of Rail Regulator to increase the amount of data published relating to service performance and complaints by May 2012.
  
• Rail timetable information to be published weekly by National Rail from December 2011.

Government financial information

We are working with the purchase and payment card providers to provide a consistent method of reporting government procurement card spend data for transactions above £500 in value, so this is available for publication on departmental websites, from end September 2011. 

See also:
David Cameron's article in the Telegraph on transparency
ICO statement on Cabinet Office transparency event

ICO seminar on privacy and anonymous data

ICO news release
30 March 2011

Being anonymous ‘an ever increasing challenge’ in 2011, says Information Commissioner

Advances in the internet, the scale of personal information that is collected by public bodies and businesses, and the pressure to share data in the name of efficiency, make being anonymous in 2011 ‘an ever increasing challenge’ Information Commissioner, Christopher Graham, will say today at a seminar the ICO is hosting on anonymisation.

Leading academics and experts from the public sector and business will gather at the Wellcome Trust in London today to consider different perspectives and approaches to anonymisation – the process of removing personal identifiers from information. Speaking alongside the Information Commissioner are Paul Ohm from the University of Colorado, Mark Elliot from the University of Manchester as well as representatives from the Cabinet Office and the Office of National Statistics.

The ICO will publish a report in the coming weeks that will summarise the seminar’s key discussion points as well as setting out next steps.

Full press release here.

Pickles: councils should allow meetings to be recorded

Communities and Local Government News
23 February 2011

Councils should open up their public meetings to local news 'bloggers' and routinely allow online filming of public discussions as part of increasing their transparency, Local Government Secretary Eric Pickles said today.

To ensure all parts of the modern-day media are able to scrutinise Local Government, Mr Pickles believes councils should also open up public meetings to the 'citizen journalist' as well as the mainstream media, especially as important budget decisions are being made.

Local Government Minister Bob Neill has written to all councils urging greater openness and calling on them to adopt a modern day approach so that credible community or 'hyper-local' bloggers and online broadcasters get the same routine access to council meetings as the traditional accredited media have.

The letter sent today reminds councils that local authority meetings are already open to the general public, which raises concerns about why in some cases bloggers and press have been barred.

For example Tameside Council has accredited professional journalists to report from meetings using Twitter. The decision means local bloggers, the public and even councillors are not permitted to tweet because they are not considered members of the press.

Eric Pickles said:

"Fifty years ago, Margaret Thatcher changed the law to make councils open their meetings to the press and public. This principle of openness needs to be updated for the 21st Century. More and more local news comes from bloggers or citizen journalists telling us what is happening at their local council.

"Many councils are internet-savvy and stream meetings online, but some don't seem to have caught up with the times and are refusing to let bloggers or hyper-local news sites in. With local authorities in the process of setting next year's budget this is more important than ever.

"Opening the door to new media costs nothing and will help improve public scrutiny. The greater powers and freedoms that we are giving local councils must be accompanied by stronger local accountability.

"We are in the digital age and this analogue interpretation of the press access rules is holding back a new wave of local scrutiny, accountability and armchair auditors."

The letter also reassured councils that giving greater access will not contradict data protection law requirements following concerns over personal information. In the majority of cases the citizen blogging about how they see the democratic process working is unlikely to breach the data protection principles.

Chris Taggart, of www.OpenlyLocal.com (external link), which has long championed the need to open council business up to public scrutiny, added:

"In a world where hi-definition video cameras are under £100 and hyperlocal bloggers are doing some of the best council reporting in the country, it is crazy that councils are prohibiting members of the public from videoing, tweeting and live-blogging their meetings.

"Councils need to genuinely engage their communities and giving wider access to their meetings through these technologies is one way they can do this."

Full press release here.