Dr FOI
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If you have any queries in relation to FOIA, the DPA and/or the EIR, you can ask Dr FOI* a question.
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Dr FOI's Postbag - September 2008
Access to the Records of the deceased
Dear Dr FOI
I have a couple of questions relating to data protection which you may be able to offer some thoughts on:
- Where a data subject is deceased, but was part of a same sex marriage before death, are there any provisions which relate to appointing a personal representative? Would their same sex partner be able to request their information upon their death over a family member? Haven’t had time to look into this in depth so wanted to get anything you had come across first.
- We have a case at the moment where a patient’s parents have requested information in relation to a complaint regarding the treatment given to their daughter. The daughter is 32 and had initially given consent for her information to be released; however she has now withdrawn this consent and also specifically stated that we should not tell her parent that she has withdrawn her consent. There is concern over what should be said to the parents if they question why the complaint response letter is so basic in its content. My approach is that we reply with ‘due to patient confidentiality we have provided all of the information possible at this time’ and leave it at that, but would welcome any thoughts as this is the first time we have come across such a situation.
Dear Colleague,
- Access to the health records of a deceased person is governed by the Access to Health Records Act 1990, which states that an application for access to the health records of a deceased patient may be made by the patient’s ‘personal representative’ or by ‘any person who may have a claim arising out of the patient’s death’ (Section 3(1)(f)). The ‘personal representative’ is usually the formally appointed ‘executor’ or ‘administrator’ of the deceased’s estate. This may or may not be the deceased’s surviving spouse or civil partner. In other words, the surviving spouse or civil partner does not have an automatic right of access to the health records of their deceased spouse/partner. However, civil partners who are registered in accordance with the Civil Partnership Act 2004 (CPA) have the same rights as surviving spouses to apply for ‘personal representative’ status (in cases where there is no valid will) and have priority over other family members: Schedule 4 of the CPA amends enactments relating to wills, administration of estates and family provision so that they apply in relation to civil partnerships as they apply in relation to marriage.
- This is certainly an unusual and awkward situation! Providing the patient has the capacity and understanding to take decisions about her own treatment, she is entitled to withdraw consent for her information to be disclosed to her parents and you must respect her wishes. There is no obligation on you, as the data controller, to give reasons or explanations for your decision not to release the information to the parents – you could simply state that the Data Protection Act prevents you from releasing the requested information at the present time. If pressed by the parents for a fuller explanation you should continue to respect the patient’s wishes, reiterate the earlier statement and set out the complaints procedure (should they wish to take the matter further). It is not necessary (indeed, it is inadvisable) to refer specifically to ‘patient confidentiality’ as the reason for withholding information.
Business Cases
Dear Dr FOI
Please could you advise on the following FOI request?
A business case stage 1 was submitted to XXX NHS Organisation by a PCT.
An enquirer has asked for (among other things) 'the full range of documents which were supplied to XXX NHS Organisation in support of the submission of Business Case Stage 1'
I have consulted with the relevant directorate here at XXX NHS Organisation and the PCT has a statutory obligation to publish the business case once it has been approved by XXX NHS Organisation. However, we cannot be sure how long it will take to approve the case as we have requested more documentation from the PCT. The business case is therefore currently a 'work in progress' and is in a developmental stage. The directorate here at XXX NHS Organisation are reluctant to disclose it at this stage as it may change over time before publication.
Is there an exemption that would apply to this - would it be section 36 'prejudice the effective conduct of public affairs' subject to the public interest test that 'disclosure at this stage may mislead the public'?
Dear Colleague
It is difficult to give definitive advice without seeing the documents themselves, but there is a working assumption that information obtained or developed by a public authority during the planning for a particular procurement activity will not be released ‘in phase’ (that is to say, during the pre-procurement initiation phase). NHS guidelines for PFI/PPP contracts require the publication of business cases within one month of their final approval, but in the non-PFI environment it may be appropriate to release some information as part of a managed process for early supplier involvement.
If you are sure that release of the full range of supporting documents during this initiation phase would be detrimental to the decision making process, you need to consider which of the FOI Act exemptions (if any) apply and then, if relevant, consider the public interest test. If the documents have been supplied to your organisation ‘in confidence’ and in the expectation that they will not be made publicly available at this time, it is likely that the Section 41 exemption applies (“information provided in confidence”). Section 41 confers absolute exemption (i.e. it is not necessary to consider the public interest test). It is also likely that the Section 43 exemption relating to “commercial interests” applies to the requested information on the basis that release of the information at this time would be likely to prejudice the commercial interests of the bodies holding the information (both the PCT and your own organisation). Some of the public interest considerations concerning the application of this exemption are set out in the guidance published on the DCA’s website.
Finally, you are right to consider using the Section 36 exemption (“prejudice to effective conduct of public affairs”) on the grounds that release of the information at this time would be likely to inhibit “the free and frank provision of advice” or “the free and frank exchange of views for the purposes of deliberation” or would be likely otherwise to prejudice the effective conduct of public affairs. The public interest considerations concerning the application of this exemption are set out in detail in the DCA’s guidance. It is important to note that use of this exemption requires the approval of a ‘qualified person’ – usually the person in overall charge of the public authority (as authorised by the relevant Minister of State) – and for this reason it is generally advisable to avoid using Section 36 except as a last resort.
For more information and guidance see the following:
FOI (Civil Procurement) Policy and Guidance published by the Office of Government Commerce
Working assumptions regarding requests for procurement-related information (published by the DCA)
Tender Documents
Dear Dr FOI
Can I ask an FOI question about tenders?
We have 2 requests:
- Request by an unsuccessful bidder for a copy of the winning tender – my view following the ICO decision notice 50131138 on 19.6.08 is that we have to release the tender including financial detail – directors and CEO are not sure.
- Request by another PCT (quoting FOI) for copies of our specifications and successful tenders for three services which we have gone out to contract on – is this a legitimate use of FOI – I also wondered about copyright on the service specs.
Interested in your thoughts.
Dear Colleague,
ICO Decision Notice 50131138 addressed the question of whether detailed financial information within a specific contract document (including the individual price quoted per task under the contract and the total price for each section of the contract) should have been withheld from the complainant (under Section 43(2) of the FOI Act) or whether this information should have been disclosed to the complainant. The Information Commissioner decided in this case to instruct the public authority to disclose the detailed financial information, but this decision needs to be read in the context of the particular circumstances of the case, which are worth setting out in some detail:
Firstly, the public authority argued that there would be prejudice to the contractor’s commercial interests if the detailed financial information were disclosed, but they were clearly unable or unwilling to provide compelling evidence or convincing arguments to demonstrate that disclosure of this information would be “likely to prejudice” the contractor’s commercial interests.
Secondly, the request had been made some 18 months after award of contract, by which time the majority of the work had been completed by the contractor. By this stage the contractor’s prices were no longer likely to be current and the disclosure of such information would be unlikely to prejudice the contractor’s commercial interests.
Thirdly, in response to the public authority’s argument that its own commercial interests would be adversely affected by disclosure, the Commissioner did not accept that disclosure would be likely to lead to changes in the tendering process, or possibly lead to the authority not achieving best value for money, or deter third parties from entering into business with this or any other public authority in the future.
This case demonstrates that the Information Commissioner is much more likely to uphold a complaint against a public authority concerning refusal to release third party commercially sensitive information under Section 43(2) if the public authority has failed to provide convincing evidence to demonstrate that the concerns raised are the genuine concerns of the third party (i.e. the contractor) rather than simply the public authority’s own thoughts on the matter. It is also clear that, whilst detailed pricing information must be protected during the tendering phase, once a contract has been awarded the sensitiveness of this information rapidly diminishes.
When handling a request from an unsuccessful bidder for a copy of the winning tender, you must start from the assumption that the tender should be released in full. The onus is on the contractor (and the public authority itself, if relevant) to provide convincing evidence to demonstrate that disclosure would be genuinely likely to prejudice their commercial interests. A contractor might argue that detailed financial information within their tender will remain commercially sensitive for some time after award of contract, for example if they are in the process of bidding for other contracts of a similar nature, but it should normally be possible to disclose such information within a reasonably short period. It’s not a question of whether the information should be released, it’s a question of when it should be released. Even if you decide to withhold some of the financial information for a short period, the rest of the tender should normally be released without delay.
As far as the request from another PCT is concerned, this is a perfectly legitimate use of FOI and the request should be dealt with - like any other request - in accordance with your legal obligations. It is expected that public sector bodies will share information and allow reasonable re-use of information (except where restricted by other legislation, such as the Data Protection Act).
If you hold the copyright in the service specification documents, the applicant would need your permission if they wished to publish the documents, make multiple copies of them etc, and you could consider issuing a copyright notice when releasing the documents. But if the applicant simply wished to use the documents in a general way, for example to obtain ideas about how to write and structure their own specification documents, it is unlikely that they would infringe copyright.
It should be noted that ‘re-use’ of documents, as defined in the Re-use of Public Sector Information Regulations, specifically excludes “the transfer for use of a document from one public sector body to another for the purpose of either public sector body carrying out its public task” (Regulation 4(2)(b)). In other words, if a public sector body is re-using another public sector body’s information for a purpose related to their ‘public task’ (i.e. their core responsibilities) then this is outside the scope of the PSI Regulations. However, if they are re-using the information for a purpose that is outside their ‘public task’ (for example commercial publishing) then they are subject to the same terms of re-use as anyone else.
*Terms & Conditions apply