NHS Operational Plans 2017/18-19

Dear University Hospitals Bristol NHS Foundation Trust,

Can I please apologise, I had meant to send this request earlier, but accidentally used the address for your colleagues at University Hospitals Birmingham. If you've not already been forwarded this request by the other UHB or your colleagues at the CCG or NBT, a copy is below and it would be great if you could process this as soon as possible.

Best,

Sid Ryan

Dear FOI Officer,

I am writing to request information on financial case for the Sustainable Transformation Plan, I understand that this is likely to be contained within your organisation’s operational plan 2017-19 and other related information.

I expect that you will rely on the ‘intended for future publication’ exemption, but this is not appropriate. The draft plans were signed by your board and submitted to NHS England on the 24th November. After feedback, these ‘finalised’ plans were again signed by the board and submitted to NHS England on the 23rd December. The plans are currently being implemented, and yet the proposed publication date is March.

There is no ‘reasonable’ explanation for why the public should wait a further three months to receive the information critical to the future health of the NHS. While I am sure that some elements of the proposals may change, we are not discussing early drafts but plans officially recognised by your regulator.

Following on from the same point, you may wish to make revisions to the Operational plans between now and March and publish the ‘final finalised’ plans. If this is the case, then there is clearly no intention to publish the information I have asked for, namely the plans submitted to NHS England.

With regards to the other likely exemption, ‘prejudice to the conduct of public affairs’, as I have noted in previous requests, if this exemption is raised I will assume that your chief executive has signed a certificate to the effect that the public, and indeed your colleagues at the Council, should not be able to view these plans. Obviously this runs counter to the stated aims of the STP referred to in the NHS Operational Planning and Contracting Guidance 2017-19: ‘a genuine commitment for local leaders to run a shared, open-book process to deliver performance and improvement’ etc.

Therefore, it would be ‘prejudicial to the conduct of public affairs’ to withhold the information, and certainly would not be prejudicial to disclose it.

Apologies for the additional work that responding to this request may create, but you surely understand that it is not acceptable to embark on the ‘transformation’ journey, with only three threadbare tables of financial data.

Could I please request:

1 - The ‘final Operational Plan 2017-19’, which I understand to have been approved by your board and submitted to NHS England on the 23rd December, to include:
1.A - Financial projections and targets
1.B - Costed workstreams, efficiency programs and service reductions
1.C - Risk registers and mitigation plans
1.D - Activity and workforce plans
1.E - And all other relevant information
2 - As above, for the ‘draft Operational Plan 2017-19’, which I understand to have been submitted to NHS England on the 24th November.
3 - Any ‘arbitration paperwork’ submitted in relation to the operational plans, I understand that the deadline for this was the 9th January.
4 - Information on meetings discussing the STP with colleagues at the Council. I would expect this to include the time, date and attendees of any meetings between senior members of your organisation.
5 - Any other paperwork, plans, projections or studies commonly in use while creating the operational plan, which you believe may be relevant to this request.

Handling this request

Applying Exemptions
Please note that exemptions should be applied to information rather than documents as a whole. This means that the most appropriate response to applying an exemption is redaction of sensitive information rather than refusing the request as a whole.
Please consider each element of this request individually, and apply exemptions in a granular manner. I would expect that in the first instance the Authority would be able to disclose non-contentious material, and we can proceed to argue the case for disclosure of a limited amount of withheld material.

Section 10 - Timelines for compliance
Section 10 of the Act requires that a public authority respond 'promptly' to a request for information and otherwise no later than within 20 working days. This point is expanded upon in the ICO Guidance Paragraph 21-25, which explains that it should only be in exceptional circumstances that a request takes the full 20 working days to process.
Please be considerate of the fact that this operational plan is currently being implemented. It is therefore not appropriate or reasonable to delay responding to this request.

Section 11 - Means by which communication is to be made
Section 11 allows for me to express a preference for the format of the request and requires that the authority comply so long as it is reasonably practicable. The format is not limited only to the options outlined in Section 11 (a), (b) and (c), broadly described as a permanent copy, inspection of the record or a summary or digest of the information.
I would prefer to receive the information in its natural format, as it is held by the Authority. I am specifically noting that I would not be happy to receive scanned photocopies and would prefer electronic formats that are capable of being text-searched.

Section 12 - Cost of compliance
Please note that according to the The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 only the costs of determining whether the information is held, locating it, retrieving it and extracting it should be included within the calculation of costs. The time taken on applying exemptions and redaction should not be included.

Section 16 - Advice and Guidance
If there is any part of this request that is unclear, please can you contact me to offer advice and guidance as to the form and format of the kinds of information held by the authority, so I am given an opportunity to explain what information I am seeking with reference to what is held. I would also note that the Section 45 Code of Practice says that in providing advice and assistance, I should be allowed to speak to your FOI officer rather than conducting all correspondence over email.

I would suggest that providing a register of items of information within the scope of this request would satisfy the requirement for Section 16.

Section 17 - Reasons for refusing a request
If the public authority feels the need to withhold any information please can it clearly outline which exemption is being applied, and the points considered when balancing the prejudice and public interest tests.
I would expect the authority to be to demonstrate why an exemption applies ‘if it would not otherwise be apparent’ as per Section 17(1)(c), and considering that I have clearly why the exemptions should not be applied, that pro-forma responses would not be appropriate.
Please bear in mind the decision Hogan and Oxford City Council v Information Commissioner [2011] which notes that to demonstrate prejudice there must be an evidence based link between disclosure and 'real', 'substantial' and 'likely' harm.

Section 22 - Information Intended for future publication
Information can only be withheld under this exemption if it meets all of the conditions outlined in Section 22(1), and you will be unable to meet part (c), which requires it to be ’reasonable’ to withhold the information until a later date.
Under the circumstances, that these plans have been signed by the board are currently being implemented, it is not reasonable for the public to wait a further three months to publication.

Section 35 - Development of government policy
To be quite clear, this exemption is only available to central government departments. It is not possible to apply this exemption and you should turn to Section 36.

Section 36 - Prejudice to the effective conduct of public affairs
Please note that in order to apply this exemption you will need to obtain a signed letter from a sufficiently senior member of staff, which I would expect to be the Chief Executive or Chairman of the Board, which states that disclosure of the information would, on balance, be to the detrimental to the public interest.

Please can you specify the exact sub-section of the exemption the authority wishes to apply i.e. Whether concerns are around full and frank provision of advice, or are more generally around the ‘effective conduct of public affairs’.

With regards to the ‘chilling effect’ argument, which forms the core of the case against disclosure, please consider Evans v Information Commissioner and Ministry of Defence 2007 (UKIT EA_2006_0064) where the Tribunal was left unconvinced that disclosure of the information would have any effect on the full and frank provision of advice.

Similarly, bear in mind the University College London’s Constitution Unit’s research on FOI, published in October 2010 in Governance, describing the ‘chilling effect’ as ‘one of the most powerful myths about FOI’. The Information Tribunal, Information Commissioner's Office and the Justice Select Committee have all found this research persuasive.

Please also consider that this exemption is balanced against the public interest, and I would imagine it will be difficult to muster a case to suggest that the public be disbarred from knowing anything about the plans until the date on which they come into force.

Section 41 - Confidentiality
This is not an appropriate exemption, as Section 41 requires that information be ‘obtained’ from a third party in order for it to fall under the exemption. All of the information in the scope of this request is information jointly created by the authority and others. None of the information has been ‘obtained’ from anyone else.

Please refer to Department of Health vs ICO EA/2008/0018 on this point.

Yours faithfully,

Sid Ryan

Freedom Of Info, University Hospitals Bristol NHS Foundation Trust

Thank you for your Freedom of Information request.

This is an automated response. Your message has been received by
University Hospitals Bristol NHS Foundation Trust.

Your request will be dealt with promptly and a full response will be
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Freedom Of Info, University Hospitals Bristol NHS Foundation Trust



Thank you for your Freedom of Information request.

 

This is an automated response. Your message has been received by
University Hospitals Bristol NHS Foundation Trust.

 

Your request will be dealt with promptly and a full response will be
issued normally within 20 working days, unless your request after initial
assessment requires further clarification or an extension to the 20
working days.

 

Should you not receive a response within this period, or you may have any
other queries about your request please contact the FOI Manager on 0117
3423714 or email [email address].

 

 

Dear University Hospitals Bristol NHS Foundation Trust,

Could I please have this request submitted to internal review, as it has not been answered. It is now clear that the Trust has no intention of releasing this information until June/July, this is an unacceptable delay in the provision of this information.

Yours faithfully,

Sid Ryan

Freedom Of Info, University Hospitals Bristol NHS Foundation Trust

Thank you for your Freedom of Information request.

This is an automated response. Your message has been received by
University Hospitals Bristol NHS Foundation Trust.

Your request will be dealt with promptly and a full response will be
issued normally within 20 working days, unless your request after initial
assessment requires further clarification or an extension to the 20
working days.

Should you not receive a response within this period, or you may have any
other queries about your request please contact the Corporate Governance
Assistant on 0117 342 3691 or email [1][email address].

 

References

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Freedom Of Info, University Hospitals Bristol NHS Foundation Trust

Dear Mr Ryan

I apologise for the delay in obtaining this information for you, your request is currently being followed up.

Kind regards

Sarah

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