Reference: FS50537165
Freedom of Information Act 2000 (FOIA) Decision notice Date:
22 January 2015
Public Authority:
Worcestershire Acute Hospitals Trust (the Trust) Worcestershire Royal Hospital Executive Suite, Sky Level 3 Charles Hastings Way Worcester WR5 1DD
Address:
Complainant: Address:
Mr S Ryan
[email protected]
Decision (including any steps ordered) 1.
The complainant has requested the full PFI contract for Worcester Royal Hospital between Worcestershire Acute Hospitals NHS Trust and Worcestershire Hospital SPC Plc and all associated documents. The Trust provided the complainant with some of the requested information but withheld some information under section 41(1) and section 43(2) FOIA.
2.
The Commissioner’s decision is that the Trust has incorrectly applied section 41(1) and section 43(2) FOIA in this case.
3.
The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation. •
4.
Disclose the information which is being withheld under section 41(1) and section 43(2) FOIA and the information which has not been provided to the complainant but where no exemptions have been applied.
The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court. 1
Reference: FS50537165
Request and response 5.
On 12 December 2013 the complainant made the following request for information under the FOIA: ‘1. The full PFI contract for Worcester Royal Hospital between Worcestershire Acute Hospitals NHS Trust and Worcestershire Hospital SPC Plc. 2. And all associated documents. I would expect this to include, but not be limited to, any schedules, annexes, appendices or other documents attached.’
6.
On 14 January 2014 the Trust responded. It refused to comply with the request as it said that it would exceed the cost limit under section 12 FOIA to do so.
7.
The complainant requested an internal review on 31 January 2014. The Trust sent the outcome of its internal review on 25 March 2014. It said that the information would need to be redacted as it contains commercially sensitive information and information provided in confidence. It said it would exceed the cost limit under section 12 to make these redactions.
Scope of the case 8.
The complainant contacted the Commissioner on 3 April 2014 to complain about the way his request for information had been handled.
9.
During the course of the Commissioner’s investigation, the Trust withdrew its application of section 12 FOIA. It provided the complainant with some of the requested information but withheld information under section 41(1) and section 43(2) FOIA. It provided the Commissioner with a copy of the withheld information and indicated to which documents section 41(1) and/or section 43(2) were applicable. The Trust did not however mark all material as being exempt. It did not explain why Part A Volume 2 or Part B of the Bible of Documents was being withheld.
10. As it does not appear that any exemptions have been applied to Part A Volume 2 or Part B of the Bible of Documents, the Commissioner considers that this information should be disclosed to the complainant.
2
Reference: FS50537165
11. The Commissioner has however considered whether the Trust was correct to apply section 41(1) and section 43(2) FOIA to the remaining withheld information. Reasons for decision 12. The Commissioner wrote to the Trust on 11 April 2014 explaining that he considered that it had misapplied section 12. He asked the Trust for a copy of the withheld information and its detailed arguments in support of any exemptions it wished to rely upon instead of section 12. In this letter the Commissioner explained the threshold that the Trust would have to meet to withhold information under sections 41(1) and 43(2). 13. The Trust wrote to the complainant 25 June 2014 advising him that it was no longer relying upon section 12, providing him with some of the requested information, and briefly explaining why further information had been withheld under section 41(1) and 43(2). 14. However, despite a reminder on 28 August 2014, the Trust did not provide the Commissioner with a copy of the withheld information or with any arguments in support of section 41(1) and 43(2) 15. The Commissioner therefore served an Information Notice upon the Trust on 22 September 2014, requiring it to provide him with the withheld information and submissions in support of any exemptions applied. 16. The Trust contacted the Commissioner in November 2014 and stated that it had not received the Information Notice despite the fact that it was sent to the Company Secretary and the Chief Executive. The Trust was provided with a copy of the Information Notice in November 2014. 17. On 19 November 2014 the Trust wrote to the complainant again, providing further information and reiterating its previous arguments in support of section 41(1) and 43(2). 18. In response to the Information Notice the Trust then sent the Commissioner a copy of its letter to the complainant of 19 November 2014 and a copy of the withheld information, marked up to show which exemption it had applied to which information. The Commissioner has therefore taken the reasons given in support of section 41(1) and 43(2) in the Trust’s letter to the complainant of 19 November 2014 to be the Trust’s “submissions in support of the exemptions” as requested in the Information Notice.
3
Reference: FS50537165
Section 41 19. Section 41(1) of FOIA states that, “Information is exempt information if(a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.” 20. In considering whether section 41(1) applies the Commissioner will usually consider the following: •
whether information has been provided by a third party;
•
whether the information has the necessary quality of confidence;
•
whether the information was imparted in circumstances importing an obligation of confidence;
•
whether disclosure would be an unauthorised use of the information to the detriment of the confider; and
•
whether there is a public interest defence to the disclosure
21. Despite the Commissioner’s advice to the Trust in his letter of 11 April 2014 the Trust chose not to provide submissions addressing the above considerations in any detail. Rather the Trust has simply explained that it has applied this exemption to information provided in confidence by a third party. It said that the information was disclosed to the Trust by a contractor in confidence with the expectation that the Trust would keep that information confidential and therefore the Trust considers the information to be exempt under section 41(1) FOIA. 22. Based upon the arguments presented by the Trust in the paragraph above, the Commissioner does not consider this is sufficient to enable him to make a finding that section 41(1) was correctly engaged in this case. In particular, upon viewing the withheld information, the Commissioner notes that the contract in question dates back to 1999 and it is not obvious to him how disclosing a contract of this age would cause any detriment to the confider of the information.
4
Reference: FS50537165
Section 43 23. Section 43(2) FOIA states that, “Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).” 24. The Trust has explained that it considers that some aspects of the redacted information would, if disclosed, cause prejudice to the commercial interests of the contractor, its third parties and the Trust. It explained that it has consulted with the contractor in relation to disclosure of the withheld information and confirmed that it’s both the Trust’s and the contractor’s view that disclosure would be likely to hamper the contractor’s, other third party contractor’s and the Trust’s ability to negotiate effectively in relation to similar future contracts. 25. Again after considering the withheld information, and in particular the age of the contract, as well as the submissions set out above, the Commissioner does not consider that the Trust has explained how the prejudice claimed would be likely to occur. Whilst the Commissioner accepts that the prejudice claimed relates to the commercial interests of the Trust, the contractor and the other third party companies involved, it has not provided a causal link to explain how disclosure of the withheld information would be likely to prejudice the bargaining positions of the Trust, the contractor or the other third party companies in the future. In the absence of any detailed explanation on this point, the Commissioner considers it unlikely that any negotiation for a future contract would be undertaken on the same terms and using the same pricing structures and considerations as a contract that was negotiated some 14 years earlier in relation to a wholly different project. 26.
The Commissioner is therefore unable to find that section 43(2) FOIA was correctly engaged based upon the submissions provided to the complainant and forwarded to the Commissioner.
27. As the Commissioner has concluded that the Trust has failed to adequately explain how either exemption above was engaged he has concluded that the information withheld under these exemptions should be disclosed along with the information to which no exemptions have been applied as outlined in paragraphs 9 and 10 of this Notice.
5
Reference: FS50537165
6
