Editor’s blog Friday 27 August 2010: Following up the FT prudential borrowing limit abolition FOI

Hello, and happy Friday.

You may remember that I wrote previously about the surprising proposal to abolish FTs' prudential borrowing limits, and as part of the piece published my FOI request to the DH to release any economic modelling data.

The dears have replied, bless 'em. And guess what? They've got the information ... but we can't have it.

Their reply reads, "Thank you for your email of 27 July to the Department of Health requesting, under the Freedom of Information (FOI) Act, information about consultation proposals relating to the borrowing limit that applies to the NHS Foundation Trusts.  Your email has been passed to me for reply.

"You specifically ask for “Any consultation, advice, economic modelling or other related analysis that the DH, ministers or their special advisers (salaried or seconded) have commissioned, seen or participated in regarding today's consultation proposals to remove the prudential borrowing limit that applies to NHS foundation trusts (FTs).”

"I can confirm that the Department holds information relevant to your request.

"However, we consider that the information engages section 35(1)(a) of the FOI Act, which relates to the formulation or development of Government policy. Section 35 is a qualified exemption, and so we are required to assess as objectively as possible whether the balance of public interest favours disclosing or withholding the information in question.

"The Department recognises a general public interest in promoting openness in the way in which public authorities develop policy.  However, the purpose of the exemption at section 35 of the Act is to protect the internal deliberative process as it relates to policy making. In other words, the exemption is intended to ensure that the possibility of public exposure does not deter from full, candid and proper deliberation of policy formulation and development, including the exploration of all options, the keeping of detailed records and the taking of difficult decisions.  Premature disclosure of information protected under section 35 could prejudice good working relationships, the objectivity of civil servants and, ultimately, the quality of Government.

"In this case, the Government’s detailed approach to the regulation of NHS foundation trusts is still under development, evidenced by the fact that the consultation is ongoing, which weighs heavily in favour of withholding the information. Furthermore, the Government intends to publish a consultation response and impact assessment on our final proposals later this year, and we consider that this will satisfy much of the public interest in understanding how policy in this area has been developed.

"Therefore, in this instance, we have determined that the balance of public interest strongly favours withholding the information at this time.

"If you have any queries about this response, please contact me.  Please remember to quote the reference number above in any future communications.

"I hope this reply is helpful.  If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. Internal review requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to:
Head of the Freedom of Information Team
Department of Health
Room 317
Richmond House
79 Whitehall
London SW1A 2NS
Email: freedomofinformation@dh.gsi.gov.uk

"If you are not content with the outcome of your complaint, you may apply directly to the Information Commissioner’s Office (ICO) for a decision. Generally, the ICO cannot make a decision unless you have exhausted the complaints procedure provided by the Department.  The ICO can be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF"

Mmmmmmm.

You know that brown stuff that comes out of the back of male cows?

Seconds out. Round Two.
Anyway, here is my reply to the DH FOI team:

Thank you for the reply to my FOI request below, revealing that you do hold information of the kind I requested.

I am surprised that you consider a Section 35 exemption to be applicable in this case, and wish to appeal for an internal review of your decision for the following reasons.

1. While I fully agree that as your reply to me states, "the purpose of the exemption at section 35 of the Act is to protect the internal deliberative process as it relates to policy making. In other words, the exemption is intended to ensure that the possibility of public exposure does not deter from full, candid and proper deliberation of policy formulation and development, including the exploration of all options, the keeping of detailed records and the taking of difficult decisions.  Premature disclosure of information protected under section 35 could prejudice good working relationships, the objectivity of civil servants and, ultimately, the quality of Government", you in no way demonstrate that such concerns do, may or will arise in this instance. The DH's internal deliberative process has clearly and intentionally concluded in favour of publishing this option for consultation, and considers it to be worthy of public consultation. A public consultation is intrinsically public exposure. Your point here does not demonstrate a good and sufficient reason why the information should be withheld.

2. The ongoing public consultation on the proposals, which you consider "weighs heavily in favour of withholding the information", cannot be meaningful consultation unless the public and professionals to be consulted have access to vital economic modelling information of the kind you hold and I request. You are essentially asking participants in the consultation to guess whether this proposal - a vital one, given that published Coalition Government policy aims for all NHS trusts to move into foundation trusts status within a short timeframe - is economically sensible or stupid. Few decisions could be of greater public interest. The information that I requested and which you hold would enable the public consultation on this crucial matter to be meaningful. Your point here does not demonstrate a good and sufficient reason why the information should be withheld.

3. You also add that "the Government intends to publish a consultation response and impact assessment on our final proposals later this year, and we consider that this will satisfy much of the public interest in understanding how policy in this area has been developed", which essentially contradicts what you raise in your preceding line about public consultation. Either the public interest and the interest of good governance is being served by the public consultation (in which case this data should be released to inform the debate properly); or (to paraphrase your line above) 'DH knows best and we'll explain what we've done here after we've done it', by which point the proposals will be moving fast towards legislation. This reason to withhold the information and your previous reason (about ongoing public consultation) essentially contradict one another. Your point here does not demonstrate a good and sufficient reason why the information should be withheld.

I look forward to your prompt response in this matter.