The growing awareness of the Freedom of Information Act 2000 (supplementing the Data Protection Act 1998 and the Access to Medical Records Act 1990) has meant that the role of information law is becoming increasingly important to NHS Trusts. Increasing public awareness is resulting in Trusts having to commit more and more time and resources to dealing with requests for information in full under these Statutes. This article aims to provide assistance to your Freedom of Information Leads by highlighting some of the more recent decisions of the Information Commissioner to provide an insight into when the NHS will be entitled to withhold information.

There are now a substantial number of helpful decisions that have been made by the Information Commissioner in relation to disclosure by the NHS under the Freedom of Information Act 2000. These have assisted in clarifying the position in relation to a number of the common exemptions relied upon by NHS bodies to withhold information from disclosure and when the Information Commissioner will back NHS bodies in their decisions. Below are some selected cases to be considered by the NHS when dealing with FOI requests followed by a summary of the key issues which have arisen from the case law:

In this article...

• County Durham NHS Primary Care Trust
• George Eliot Hospital Trust
• Newcastle Upon Tyne NHS Trust
• East Sussex Hospitals NHS Trust
• Key Issues and Best Practice

County Durham NHS Primary Care Trust

Case Reference: FS50111780

A mother requested a summary of the medical care provided to her late daughter who died at the Trust. The Trust refused to provide this information relying upon the exemption contained in section 41 of the Freedom of Information Act 2000, which provides a right to withhold information where it has been given in confidence. The Trust based the decision upon the fact that the medical records of the daughter contained explicit instructions that her medical records were not to be disclosed to her parents. The Information Commissioner upheld the decision in favour of the Trust.

George Eliot Hospital Trust

Case Reference: FS50104995

A request was received by the Trust for information about the circumstances surrounding the departure of a previous Chief Executive. The Trust refused to disclose the information on the basis that it was personal data, that disclosure would breach the Data Protection Act, and was therefore exempt under Section 40 of the Act. Even though the request was for the circumstances surrounding the departure of the member of staff, and did not request personal details, the use of the exemption was upheld. The Information Commissioner held that as the Chief Executive was the focus of the withheld information, he could still clearly be identified from it and it was therefore legitimate to withhold the information.

Newcastle Upon Tyne NHS Trust

Case Reference: FS50086131

The standards of clinical practice of a Doctor had been investigated by the Trust and a report was commissioned from a panel of doctors. The complainant requested a copy of the report that was published as a part of the investigation. The Trust refused to disclose the information relying upon the exemptions under sections 31, 36, 40 and 41 of the Act.

The Information Commissioner considered all four of the exemptions relied upon by the Trust and upheld them all. One of the key factors considered by the Information Commissioner was that the Panel appointed to review and report upon the Doctor did so on the grounds that their report would not be published without their prior permission. The Trust approached the Panel when they received the request, but they unanimously withheld their consent for the report to be made public.

Interestingly, the Information Commissioner also upheld Section 36 in relation to the report and agreed with the Trust’s assertion that future investigations of a similar type would be prejudiced if the reports were to be made public. The Information Commissioner agreed with the Trust in that “it would be impossible to find members for panels, such as this one, in the future if this report was put in the public domain.”

East Sussex Hospitals NHS Trust

Case Ref: FS50080302

A request was made for a copy of the report of an independent inquiry panel set up to address concerns about the clinical governance at the Trust. The Trust was concerned that the final report contained some personal data and that to release it would be in breach of the Data Protection Act. The Trust therefore redacted the personal information before releasing the report and sought to rely on Section 40 of the Act to withhold the redacted information.

The Information Commissioner upheld the decision and approved that the release of a report with information removed was a suitable manner in which to respond to the request.

Key Issues and Best Practice

		The fact that a document may contain certain personal information does not automatically make the whole document exempt from disclosure. Good practice is to remove the information that is exempt and release a redacted version of the document wherever possible
		It is important to note that recent decisions have confirmed that the duty of confidentiality may continue after death and that information contained in medical records may remain confidential, even when requested by the family.
		Many decisions made by the Information Commissioner make reference to inadequate refusal notices. The Information Commissioner has made it clear that any refusal for information must be clear and the sections and case law, if relevant, relied upon by the Trust in withholding information must be set out in the response to the applicant.

The increasing number of decisions made by the Information Commissioner and the Information Tribunal are proving very helpful in approaching Freedom of Information requests received by Trusts and will no doubt prove a valuable resource to Freedom of Information leads within the NHS in determining their responses to requests.

For further information and help, please contact James Cassidy, Birmingham, Harry Karalou, London or Jane Bennett, Bristol.