BY E-MAIL ONLY

To: D Speers

1^st July 2009

Our reference: CQC-111

Dear Ms Speers,

I am writing in response to your request for an internal review of your recent request for information. The request was processed under the provisions of the Freedom of Information Act 2000. In your e-mail of 11^th June 2009, you requested the following information:

Having now had the opportunity to consider your request and the response you received from Andrew Lall, I remain of the view that the Commission applied the exemption in Section 22 FOIA correctly.

Section 22 of the FOIA provides that information is exempt from disclosure if-

The main issue in this review is not whether or not the information should be withheld, but the timing of disclosure of the report into WLMHT. This is because the Care Quality Commission (CQC) will definitely be publishing the requested report.

As stated in Mr Lall's letter to you of 12^th June 2009 and Mr Daybank's letter to you of 27^th May 2009, the Care Quality Commission does hold an investigation report into West London Mental Health Trust which has been produced as a result of the Healthcare Commission's investigation of WLMHT which was inherited by the Care Quality Commission (CQC). CQC has a firm intention to publish this investigation report and Mr Lall does state in his letter to you that it is intended that the report will be published later in the summer. Therefore Mr Lall is correct in his consideration of Section 22 FOIA in as far as paragraphs 1 (a) and 1 (b) above are satisfied. This also means that the main issue in this review is therefore not whether or not the information should be withheld, but the timing of disclosure of the report into WLMHT. This is because the Care Quality Commission (CQC) will definitely be publishing the requested report.

Section 22 does not provide an absolute exemption to disclosure due to the need to consider the reasonableness of withholding the information at this time (as set out in paragraph 1 (c) above) and the public interest test. Mr Lall's response to you of 12^th June 2009 has shown that the public interest test was applied in relation to your request. CQC is not under a duty to provide you with a list of points for and against disclosure but rather CQC must show that the public interest has been considered and the reasoning in relation to the same I consider that Mr Lall did provide sufficient reasoning in relation to the consideration of the public interest test when he stated that; `It is considered that the public interest in ensuring that the report has sufficient time to be properly formulated outweighs the public interest to receive a draft of the report prior to the due publication date.'. However, for the sake of clarity I have again considered the reasonableness of withholding the information prior to publication and the public interest test below.

ICO guidance states that there should be a presumption in favour of disclosure so that the public interest may be served through greater transparency, openness and accountability. Serving the public interest in relation to these factors would therefore involve disclosure of the report. However, the process which a report must progress through before its publication is intended to ensure factual accuracy and efficacy in relation to the material contained therein. This process involves the report being shared with third parties such as the Strategic Health Authority, relevant Trusts and the Department of Health. These third parties are then given the opportunity to fact check the document only. The report which you have requested has currently not completed the process and therefore it is considered that disclosure of the document at this stage would be unfair to these third parties. In addition, the document may be misleading and inaccurate if disclosed at this stage and obviously because the consultation has not yet been completed, the commission would be unable to supply an explanation with the document to counteract this effect. Therefore it is considered that it is reasonable in all the circumstances to withhold the report into WLMHT and that the public interest in maintaining the exemption outweighs the public interest in disclosing the information prior to publication.

I note that you also consider that Mr Lall should have provided a timetable for release of the WLMHT investigation report. Section 22 FOIA does not provide that an exact date for publication must be set but rather that the information must be held with a view to publication. In addition, ICO guidance in relation to the application of the Section 22 exemption states that the key issue is the likelihood of publication. There is no requirement for CQC to provide a full timetable for publication because the reasonableness of the decision to apply the exemption can be determined by the intention to publish and also how soon it is intended that the information will be published. I therefore consider that Mr Lall's statement that the report is due for publication in the summer is sufficient and compliant with the FOIA and guidance in relation to the same.

I hope that I have now been able to answer your questions. However, should you remain dissatisfied after this internal review; you have a right of complaint to the Information Commissioner. Further information is available at:

Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Telephone: 01625 545 700

www.informationcommissioner.gov.uk

Yours sincerely,

Information Access Officer

Chairman

Barbara Young

Chief Executive

Cynthia Bower

Registered office:

Finsbury Tower

103-105 Bunhill Row

London EC1Y 8TG