Request
Dear Sir/Madam,
Under the terms of the Freedom of Information Act, I would be most grateful if you could supply me with the following information:
1. The number of SUI and enquiries your organisation has commissioned in the last three years
2. The name/identification of each SUI, the date of the incident(s) in question and the publication date of the report, which NHS organisation was involved/under investigation, the name of the individual/organisation that provided the report and the final fee paid for each.
3. Copy of and outstanding tender documents.
4. and finally a list of outstanding SUI enquiries and investigations which you have yet to complete/commission.
Our Response
I refer to your email requesting information in respect of Serious Untoward Incidents.
I can confirm in accordance with S.1 (1) of the Freedom of Information Act 2000 (FOIA) that we do hold the information that you have requested. I will address each of your points in turn:
1. The number of SUI and enquiries your organisation has commissioned in the last three years
This information is available via our website at the following link:
http://www.eastmidlands.nhs.uk/about-us/publications/indinvmh/
2. The name/identification of each SUI, the date of the incident(s) in question and the publication date of the report, which NHS organisation was involved/under investigation, the name of the individual/organisation that provided the report and the final fee paid for each.
We have a policy to anonymise investigations and therefore we cannot provide this information. This is explained in our ‘Guidance on Independent Investigation Process available on our internet.
http://www.eastmidlands.nhs.uk/EasySiteWeb/getresource.axd?AssetID=5666&type=full&servicetype=Attachment
We are also of the opinion that Section 40 (2) of the FOIA is engaged in this instance.
Section 40 (2) applies to third party personal data and is exempt from disclosure under the FOIA if disclosure would breach any of the data protection principles contained within Part 1 of Schedule One under Section 4 (1) and (2) of the Data Protection Act 1998 (DPA). Such information would not be released under the FOIA unless there is a strong public interest.
One of the main differences between the FOIA and the DPA is that any information released under the FOIA is released into the public domain, not just the individual requesting the information and disclosure under the Act must be made with that in mind. As such, any release that identifies an individual through releasing their personal data, even third party personal data, is exempt.
All persons whose personal data is processed by NHS East Midlands, regardless of whether they be staff or members of the public, have an intrinsic right to privacy and these rights are protected by virtue of the DPA. Release of the information subject to the exemption is likely to compromise those rights.
The Section 40 exemption is an absolute exemption (except in some limited circumstances). This therefore means that it is not necessary to carry out a public interest test.
It is our view that Section 40 (2) is engaged because the persons concerned are likely to be identified by the disclosure of the information in its entirety. Such a disclosure would be a breach of Principle One of the DPA. The general public can expect NHS East Midlands to secure their personal information in line with the principles contained within the DPA.
3. Copy of and outstanding tender documents.
We are of the opinion that the information requested is exempt from disclosure under Section 43 of the FOIA. This exemption relates to information whose disclosure would be likely to prejudice commercial interests. Under the FOIA, the commercial interest exemption (S.43) states that:
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(1) Information is exempt information if it constitutes a trade secret or
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(2) 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).
The tender proposals received contain special commercial formulas and pricing which are exempt under section 43(1) of the FOIA. The proposals contain detailed commercial information, work methodology and project management structures. It is also the case that the owners of this information limit dissemination or at least do not encourage or permit its widespread publication. If this information was disclosed to competitors, there would be a real and significant harm to the owner of the trade secret.
The tender proposals also fall under section 43(2) because public disclosure would, or would be likely to prejudice the commercial interests of the organisations in question, in particular their ability to successfully engage in a competitive commercial market. By disclosure of the tender proposals to the public, competing firms would be permitted to gain access to strategic commercial and business information which has been provided in confidence to NHS East Midlands. This would give an unfair advantage to competitors in submitting and negotiating future tenders with NHS East Midlands or other public bodies.
We are also of the opinion that disclosure of the outstanding tender documents would, or would be likely to prejudice our business reputation with suppliers, contracting parties and other stake holders. This would have a detrimental impact and threaten NHS East Midlands’ ability to successfully participate in commercial activity, in particular the ability to negotiate best value terms of contract in the best interests of the general public.
Commercial Interests - Public Interest Test
The information you have requested also requires careful consideration and application of the public interest test, this is to consider whether the public interest in disclosing the information outweighs NHS East Midlands’ interest in withholding it.
I have set out our public interest considerations as follows:
1. There is a strong likelihood that commercial prejudice to NHS East Midlands and the organisations concerned would materialise if the outstanding tender proposals were disclosed to the public;
2. The degree of prejudice suffered by the organisations is likely to be substantial and over a considerable period of time.
3. Public disclosure of the information would undermine the ability of NHS East Midlands to perform its statutory functions and, in particular, to secure best value for the general public.
On this basis, we believe that NHS East Midlands’ interest in withholding the information at this point in time outweighs the public interest in disclosing it.
4. and finally a list of outstanding SUI enquiries and investigations which you have yet to complete/commission.
The on-going status of all our independent investigations is updated via our website on a monthly basis. Please see attached copy of the latest update.
I hope that this information is of use. If you are dissatisfied with the way in which we have dealt with your request you can ask us to review our decision by writing to:-
Mr Moosa Patel
Director of Corporate Affairs
NHS East Midlands
Octavia House
Interchange Business Park
Bostock's Lane
Sandiacre
Nottingham
NG10 5QG
If at the conclusion of any review you remain dissatisfied you may complain to the Information Commissioner who can be contacted at:-
The Office of the Information Commissioner
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
