There has been a growing campaign to ensure that all organisations that accept our money to deliver public services should have to abide by the provisions of the Freedom of Information Act (FoIA). Quite right and encouraging that Labour have adopted this as part of their Ten Year Plan.
But what has been seen on a significant scale is NHS bodies refusing to abide by the FoIA. So enforcing the current Act is equally important. I have experience of a number of examples of blatant disregard of the Act, having worked on various procurement exercises – and I expect others have too. It ought to be simple enough. The public should have the right to see all the documents produced by the public body in developing its case and in progressing a solution using public procurement.
The CCGs in particular have been very poor at compliance refusing even basic information, such as their Business Case, despite the fact that others happily publish theirs! They use two arguments.
First they say information provided to bidders is ‘commercially confidential’ (S43 of FoIA). Since this is information provided to ALL bidders it is hard to see how the position of the CCG can in any way be prejudiced by publishing it. The idea of public commissioning bodies having ‘commercial’ interest is a bit of a stretch anyway.
Second they claim that disclosure would ‘prejudice effective conduct of ‘public affairs’ (S36 of FoIA). This is really just about protecting reputation and is nonsense – public bodies should be accountable and so we are entitled to know why and how they make decisions. Public bodies are not entitled to have free and frank exchanges of views in private – they are not private businesses and are not policy makers.
These claims for exemption are maintained even long after the procurement project has been concluded. We should be able to know what is being done on our behalf and the only possible exemption would be if any disclosure made getting a good deal less likely – which is almost impossible to envisage and cannot apply once a contract has been signed.
So information from the public body cannot be withheld or perhaps in some rare instances can only be withheld for a defined and short period of time.
What about information from bidders?
There is a specific exemption for those that bid for public contracts as provided in the Public Contracts Regulations:-
Confidentiality of information
43.—(1) Subject to the provisions of these Regulations, a contracting authority shall not disclose information forwarded to it by an economic operator which the economic operator has reasonably designated as confidential.
(2) In this regulation, confidential information includes technical or trade secrets and the confidential aspects of tenders.
However almost all NHS procurement projects also take steps to notify bidders that the FoIA still applies. Eg:-
Although a Candidate may have indicated that information is confidential, the Trust remains responsible for determining in its absolute discretion whether such information is exempt from disclosure under the FOIA or the EIR or must be disclosed in response to a Request for Information.
That should be clear enough. It is up to the bidder to designate what information within the documents they provide which they would like to be confidential, yet it is the CCGs that decides to withhold whole documents whether there has been any designation or not.
And the CCGs assume information from bidders is all confidential and exempt from FoIA because of Contract Regulations even when they supply documentation to bidders which say the opposite – the FoIA outranks the Regulations.
This is actually a scandal and we may have to consider whether we actually need to have some kind of sanction on those that deliberately refuse to abide by FoIA. Clearly in the current NHS where we have endless Regulators but no system management there is no body which can come in and tell CCGs to behave properly.
It’s our money – we have the right to know what these people are doing with it – even if knowing would make them accountable and in many cases embarrassed and potentially removed from office.