In defence of FOI: Part 3

Freedom of Information is under attack.  In my last post I looked at the subject of vexatious requests, a subject that I will undoubtedly return to in a future post as it does appear to be a feature in a number of recommendations made to the Justice Select Committee by a number of public bodies.  However, in a series devoted to defending FOI legislation I thought I would look at some of the things we know now that we probably would not have known about had it not been for FOI.  An excellent example is the recent decision against NHS Ayrshire and Arran.  While not a request made under the specific piece of legislation that is under scrutiny by the Justice Select Committee it demonstrates quite effectively the very real benefits of FOI and just why we should be doing all we can to both protect and enhance FOI rights.

The Scottish Information Commissioners decision in the application by Mr Rab Wilson against Ayrshire and Arran NHS Board (036/2012) is a lengthy decision notice to read.  The main decision runs to almost 30 pages and has some 203 paragraphs.  The background to the request is complex and lengthy, but is set out clearly in the Commissioner’s decision in paragraphs 3-22.  Leaving aside the severe criticism of the NHS Board’s records management processes (something to which I shall return in a future post) the information that was eventually released as a result of the Commissioner’s decision is of great public importance.   Had it not been for FOI legislation with a strong and independent regulator then it is hard to envisage a situation where this information would have ever come to light.

The information released reveals some serious failures by the NHS Board.  The application was made by a Staff Nurse employed by the NHS Board who was concerned about the way in which serious incidents which had involved the deaths of around 20 patients had been investigated and the subsequent actions taken by the NHS Board.  The saga stretches back some five or six years and reveals sheer incompetence.  While I do not intend on focusing on good records management in this post (that will feature in a future post) the poor records management in the case may very well have put the lives of staff and/or patients in danger.

The request centred on Critical Incident Reports and Significant Incident Reports.  The request also related to the action plans that followed these reports.  These reports and plans are critical as they form part of the review and learning process from serious events within the NHS Board.  The request never started out as an FOI request.  Initially it appears that Mr Wilson sought the information in his capacity as an employee of the NHS Board.  There appeared to have been a practice of making these reports and plans available to staff upon request (although there was a change in policy that put the decision as to who obtained the reports and plans into the hands of a “Relevant Director”).  Initially the NHS Board said that it only held one report that fell within the scope of Mr Wilson’s request.  This was something that the NHS Board maintained for sometime even after the application to the Commissioner had been made.  However, it became apparent that there were serious failings in the NHS Board’s records management policy and procedures.  Mr Wilson made his initial application to the Commissioner on 11 March 2011.  There appeared to be 32 Critical Incident Reports for which no action plan was held.  Had this been the case then this in itself would be a serious matter, by the very nature of these reports then the NHS Board must have undertaken some form of formal exercise to review what had happened and what could be done to ensure that such incidents didn’t happen again in the future.  However, on 4 July 2011 (after having maintained since April that no further action plans existed beyond the one already disclosed) the NHS Board located some 56 Critical Incident Report Action Plans.  The NHS Boards reason for having not located these earlier was that they were sitting on a drive which they did not, it appears, routinely search as it contained information personal to individual members of staff.  The NHS Board stated that it had not anticipated that these reports might be located on this particular server.

The background to this case is not really all that important, but rather what it revealed is important.  It revealed serious failings in records management at the NHS Board.  It is unlikely that these failings would ever have been discovered had it not been for the existence of the FOI legislation and the public scrutiny that it creates.  Those serious failings in records management meant that the NHS Board had absolutely no idea where some critical documents were located.  These documents are of the sort that staff and management are likely to require access to after they were initially created and as such were of the sort that you would expect to be located quickly and without difficulty.  These are the sorts of documents that might, for example, be required by the NHS Board’s lawyers as evidence to show compliance with Health and Safety legislation.  Were the actions set out in these action plans ever performed?  There certainly doesn’t seem to be any evidence as to whether they were or not.  Had the right people seen these reports at the right time to make the right changes to processes?  If not then lives could have been put in danger all because of poor records management.

This FOI request revealed a shockingly poor level of Governance in a public authority charged with the lives of a large number of people.  Had these failings not been picked up then it is more than possible that something could have been missed and the consequences of that could have, in the most serious of cases, resulted in deaths.

It is requests like this one that reveal serious matters of great public importance and interest that justify the existence of FOI laws.  Would Mr Wilson have made his requests if there was a fee for making the request? Perhaps not, and the public would have been worse off as a result.  While the cost to the taxpayer will have been significant in respect of this request (when one takes into consideration the number of years it happened over and the intense investigation conducted by the Commissioner) may very well save a life and will certainly save public money in the future.  Those savings, in particular the former, cannot be quantified and justified against the expenditure by a public authority on handling an FOI request.   The damages that could have been awarded in a case against the NHS Board in future actions where it had no evidence to demonstrate the steps it had taken to mitigate such a situation happened could very easily exceed considerably the money spent on handling the fOI request (especially when the cost of defending an action are taken into consideration).  A simple request to a public authority can uncover serious failings within the organisation that might otherwise have gone undetected costing the taxpayer a lot more than it cost to handle the request.

The Commissioner’s decision can be read in full here and is very much worth a read if you want to really understand what happened in this case and just why FOI is a good thing that should be encouraged.

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