In the bright new open and transparent health service we are seeing the reality of more and more restrictions by spurious claims of commercial confidentiality.
Extensive competitive procurement is required for NHS services and various attempts are being made to procure reconfiguration of NHS organisation through franchise, merger and takeover. These are changing the nature of our NHS and we have a right to understand what is being proposed and why and to have enough information to take part and to hold those responsible to account. Not happening.
The myriad quangos running our health service make so many claims about openness, transparency and engagement with stakeholders you might expect they would insist on going the extra mile around facilitation of disclosure. Not so.
All public authorities must produce a publication scheme under the Freedom of Information Act, which outlines the information they will routinely make available to the public – such as minutes of meetings, annual reports or financial information. The presumption is the right to know – you disclose unless you have a good objective reason for not doing so which you are expected to articulate. But there are areas that can be exempt.
The two areas of choice for refusing to disclose information are:-
- the information was provided “in confidence” ie it would be legally actionable to disclose it and
- the information would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).
Those running procurements can keep the applicability of both to a sensible minimum. They don’t.
Within our NHS the Procurement Guide for Commissioners of NHS-Funded Services and other guidance make clear you have to go further that just the FoI requirements. You should have clear policies about how confidentiality issues should be addressed around procurement and contracting. Blanket designations of “confidentiality” are simply not acceptable and effort should be made to limit what is reasonably tagged as confidential by tenderers and suppliers. So you should have a procurement strategy and a plan and include in them how “confidentiality” issues are to be addressed and minimized. Rare to find one.
Commercial interest does not have absolute exemption. Public bodies must also have clarity about how they assess the public interest in favour of disclosure against any detriment. And it is for the commercial body to declare what it regards as confidential due to its commercial interest and not for the public body just to assume everything must be withheld.
There are many sources of guidance, including tables of best practice. But as with so much else the NHS goes its own way learning nothing from the experience of others.
If you are undertaking procurement within the NHS you should not need the FoI to decide to put into the public domain as much information as possible and to make it accessible. In an electronic document world the cost is close to zero. So everything around governance, plans, business case, and strategies should be made public either at the outset or at appropriate phase. So too in due course should the contract. This should be made clear to those who wish to provide services to the NHS. Doesn’t happen.
And what about those “stakeholders” who actually take part in procurement exercises? They must have access to all information (although they often don’t) and they will be expected to sign an appropriate confidentiality agreement. Yet these agreements are used as a dramatic gagging exercise which ensures stakeholders cannot in any way engage with the group they represent.
The record so far is very poor, hopefully more in ignorance than by design, but either way the reasonable expectations of those who care about health services and what is happening to them are not being met.
It’s time we fought back and started confronting arrogant and pompous officials who patronizingly tell us what we can and cannot be allowed to see.