Jennifer Stanley - Tracy Boylin Investigation - Request for Information

Letter referred to in the thread - Jennifer Stanley Investigation Outcome Letter to Paul Calvert - Dated 14th May 2020

Mr P Calvert
Via email

14 May 2020

Dear Paul,

We are writing to thank you for your recent involvement in the Freedom to Speak Up (FTSU) investigation
conducted independently by Jennie Stanley and Tracy Boylin. We know that it is not always easy or
comfortable to partake in these types of investigations and we are grateful for your co-operation, support
and honesty.
As outlined in the letter inviting you to take part in the process, the purpose of the FTSU investigation was
to look into concerns raised around values, behaviours and policy adherence and importantly to identify
any positive learnings for the Trust as a consequence.
The investigation was undertaken by two independent, professionally qualified and experienced
investigators. We engaged independent investigators who had not previously been involved with the
Trust to assure you and all others involved that we wished to protect the integrity of the investigation &
deal with this seriously.
We have now received the FTSU report and we are in a position to provide you with some feedback.
In the report all witnesses are referred to by a witness identification key and are not identified by name.
The witness identification key is known only to the two investigators and the signatories of this letter. It
will not be shared with anyone else.
The investigation has covered a wide range of issues which the investigators summarised into five core
themes:
1. Potential / actual financial loss to the Trust;
2. Breach of trust and confidence;
3. Practicing outside of Trust policies;
4. Ineffective team working; and
5. Toxic / bullying culture.

The investigators also identified some broader learnings / areas for improvement outside of these
themes. We understand all witnesses did not provide evidence to all the issues.

The Trust’s values and behaviours framework were utilised to assist in the assessment of findings and
support the conclusions and recommendations.
We want to particularly thank you for bringing your concerns relating to the Trust’s coronial process to
the attention of the investigators.

As you are aware we took immediate action to commission a separate independent review into the concerns. This has concluded that there a number of actions that we must
take to improve our processes and practices.

A task and finish group has been established to progress
with the implementation of these actions at speed.
The investigators assessed all the evidence, provided either by witness evidence or documentary evidence to reach their conclusions. They based their conclusions on the balance of probabilities which is the civil burden of proof.

That means, to be found proved something is more likely to have occurred than not. The investigators did find that based on the balance of probabilities some of the concerns were found not proved.

However, the evidence led them to conclude the majority of concerns raised were found proved. A number of the proven allegations related to the behaviours of individuals. Where this is the case these behaviours will be addressed by the line managers of those individuals.

The Trust will also be undertaking further work to both assess and develop its culture more broadly – this includes identifying key actions to develop the Just Culture approach. A number of the Trust’s policies, procedures and processes will be revised to ensure they align to expected behaviours and Just Culture.

The investigators included in the report several recommendations for action to remedy the issues they
found proved.

To ensure we can now take the recommendations of the report forward we have written to the Chairman
and Chief Executive outlining the issues which are required to be addressed. We have asked them to report back to us on the action they have taken in due course.

We are sure you will appreciate the current COVID-19 crisis will impact on the timescales of some of the
work which will be required. However, we can assure you that we have already instigated action to
address some of the more serious concerns raised. This includes the concerns raised regarding the
coronial process.

We hope this feedback will assure you that the concerns raised have been thoroughly investigated and
your evidence was extremely valuable in that process.

Thank you again for your personal commitment to this FTSU investigation. This is invaluable in assisting us to move forward and implement positive improvements and change.

Please feel free to contact either of us if you require any further information and we will endeavour to
assist.

Yours sincerely,
Carolyn Peacock and Jennifer Boyle
Freedom to Speak Up Non-Executive Director Lead / Freedom to Speak Up Guardian

Decision Notice From ICO - Requesting that NEAS disclose the Terms Of Reference & Recommendations From the Jennifer Stanley Investigation as follows -

Reference: IC-244064-J0P5
1
Freedom of Information Act 2000 (FOIA)
Decision notice
Date: 12 September 2023
Public Authority: North East Ambulance Service
NHS Foundation Trust
Address: Ambulance Headquarters
Bernicia House
The Waterfront
Goldcrest Way
Newburn Riverside
Newcastle upon Tyne
NE15 8NY

Complainant: Paul Calvert

Decision (including any steps ordered)

1. The complainant has requested information regarding an investigation commissioned by the North East Ambulance Service NHS Foundation Trust (the Trust). The Trust provided some of the information but
withheld other information citing sections 21, 41 and 40(2) of FOIA for doing so.
2. The Commissioner’s decision is that the Trust cited section 41 of FOIA appropriately for the most part and that the information should not be
released, except for the majority of part three of the request. However, he has decided that the Trust cited section 21 incorrectly and the exemption is not engaged. He has only considered section 40(2) in relation to part three of the request where it is not engaged for reasons
set out in this decision.

Reference: IC-244064-J0P5

3. The Commissioner requires the Trust to take the following steps to
ensure compliance with the legislation.
• Disclose the ‘Terms of Reference’ as set out on pp 5-11 of the
report.
• Disclose the ‘Recommendations’ on pp 187-190 with the exception
of paragraph 2 on p.187.
4. The public authority must take these steps within 35 calendar days of
the date of this decision notice. Failure to comply may result in the
Commissioner making written certification of this fact to the High Court
pursuant to section 54 of the Act and may be dealt with as a contempt
of court.
Request and response
5. On 5 February 2023 the complainant wrote to the Trust and requested
information in the following terms:
“I write to you, requesting information under the provisions of the
FOIA 2000. My request is for the following information, which I am
aware is held by you the public body. I respectfully request the
following information from an Investigation by [redacted names]
in 2020, who were commissioned by the trust to
investigation a number of concerns raised by whistleblowers at the
trust.
1) The terms of reference for the [redacted names] investigation
2) The conclusions or finding of the said investigation
3) The recommendations of the said investigation
4) Was the said investigation shared with the regulators, the CQC
and NHSE
5) If the investigation was shared with the regulator, the CQC and
NHSE, what date (s) was the investigation shared and with whom.
6) Should the NEAS be unable to provide the above, a full redacted
copy of the investigation is requested…”
6. The Trust responded on 1 March 2023 to each part as follows:
1) Withheld under section 21 of FOIA (information accessible by other
means).
2) Withheld under sections 21, 41 (information provided in confidence)
and 40(2) of FOIA (personal information).
Reference: IC-244064-J0P5
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3) Withheld under sections 21, 41 and 40(2) of FOIA.
4) Response provided.
5) Response provided.
6) Withheld under section 41 of FOIA.
7. On 2 March 2023 the complainant requested an internal review.
8. However, for unknown reasons there was a failure in transmission when
the Trust tried to provide its internal review on 28 April 2023. Therefore
the complainant did not receive it until 9 August 2023. The review
maintained the Trust’s position.
Scope of the case
9. The complainant contacted the Commissioner on 27 June 2023 to
complain about the way their request for information had been handled.
10. The Commissioner noticed that the Trust had not provided a promised
internal review via the route used by the complainant and rang the Trust
to query why this was. The Trust was unaware that the complainant had
received neither the letter it sent on 31 March 2023 extending the time
it required to carry out an internal review nor the review itself. He asked
the Trust to provide the internal review letter. Although the failure in
transmission should not have occurred, the Trust stated that they were
both sent to the email address displayed on the letters.
11. Though the complainant appeared to accept that the letter sent by the
Trust had been sent as per the stated date, they did not accept that the
letter the Trust had sent extending the time taken to carry out the
review had been sent as dated. They wrote to the Commissioner asking
that this aspect be investigated.
12. The Commissioner explained that his regulatory powers do not extend to
investigating alleged criminal offences under the Forgery and
Counterfeiting Act 1981 because it is outside the scope of his role and
powers.
13. The Commissioner considers that the scope of his investigation is to
consider the Trust’s citing of sections 21, 41 and 40(2) of FOIA to the
withheld information.
Reference: IC-244064-J0P5
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Reasons for decision
Section 41 – information provided in confidence
14. Section 41(1) of FOIA provides that –
“(a) Information is exempt information if it was obtained by the
public authority from any other person (including another public
authority); and, (b) the disclosure of the information to the public
(otherwise than under this Act) by the public authority holding it
would constitute a breach of confidence actionable by that or any
other person”.
15. The Commissioner’s advice on section 41 states that
“information will be covered by Section 41 if –
• it was obtained by the authority from any other person,
• its disclosure would constitute a breach of confidence.
• a legal person could bring a court action for that breach of
confidence, and
• that court action would be likely to succeed.”1
16. The Trust has cited this exemption for parts two, three and six of the
request. The exemption doesn’t -
“cover information the authority has generated itself, although it
may cover documents (or parts of documents) generated by the
public authority if these record information provided in confidence
by another person…”
Was the information obtained from any other person?
17. Section 41(1)(a) states that the information must have been obtained
from “any other person”.
18. Although the Trust has generated the report itself, the reason it was
generated in the first place is because of concerns raised by another
1
information-provided-in-confidence-section-41.pdf (ico.org.uk)
Reference: IC-244064-J0P5
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person. Its content contains witness statements and the conclusions and
findings reached were informed by these witness statements.
19. Parts two and six are engaged by the exemption at section 41 of FOIA.
20. However, the Commissioner does not accept that the information
requested at part three of the request (recommendations) was correctly
withheld under section 41 as it was not provided by any other person
and can (with the exception of one paragraph) be disclosed without
breaching confidentiality.
Would disclosure constitute an actionable claim for breach of
confidence
21. The usual test for section 41 cases is set out in the case of Coco v Clark
[1969] RPC 41 which sets out three elements which must be present in
order that a claim can be made. According to the decision in this case a
breach of confidence will be actionable if:
• the information has the necessary quality of confidence;
• the information was imparted in circumstances importing an obligation
of confidence; and
• there was an unauthorised use of the information to the detriment of
the confider.
22. The Trust explains that the investigators had “made a commitment to
everyone” that they spoke to that their personal information would be
kept confidential. It was explained to the complainant that:
“… all witnesses are referred to by a witness identification key
and are not identified by name. The witness identification key is
known only to the two investigators and the signatories of this
letter. It will not be shared with anyone else”.
23. The investigation was conducted -
“under the Freedom to Speak Up: Raising Concerns
(whistleblowing) Policy for the NHS and that all witnesses who
participated in this investigation have the right to confidentiality
unless there is a requirement to disclose by law or court order”.
For this reason the investigator advised that publishing a copy of the
report “would constitute a breach of confidence to all those individuals
to whom [they] made a promise and commitment during [their]
investigation”.
Reference: IC-244064-J0P5
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24. However, for that claim to be ‘actionable’ within the meaning of section
41(1)(b) of FOIA, a public authority must establish that an action for
breach of confidence would, on the balance of probabilities, succeed.
25. The Trust provided argument about some of the witnesses that cannot
be reproduced here. Publishing the report -
“even if heavily redacted – will have two serious consequences.
1. Those individuals identified will have course to take action that a
confidence has been broken and are likely, in at least one or two
cases, to do so because of the potential harm this will have on both
other proceedings and their individual reputation and integrity.
2. This would seriously harm any future Freedom to Speak Up
cases. In particular, if others saw that a promise of confidence was
not kept and an investigation is published, it would very likely have
the effect of preventing future whistle-blowers from coming
forward”.
Does the information have the necessary quality of confidence?
26. In order for information to have the necessary quality of confidence, it
must be more than trivial and not otherwise accessible.
27. The Commissioner has been provided with the withheld information.
Having seen it, he considers that the information is serious and not
otherwise accessible which gives it the quality of confidence.
Was the information imparted in circumstances importing an
obligation of confidence?
28. The complainant contends that,
“there is a strong public interest in the said document being placed
into the public domain. This investigation cost the taxpayer over
£35,000. Given its content, the public disclosure of it is strongly
weighted. Especially given its significance to matters already in the
public domain and the degree of public interest”.
29. They also raise issues about the culture in place at the Trust and
whether it was meeting its statutory obligations.
30. The Trust has stressed that there is an obligation of confidence because
the witnesses were promised confidentiality unless legally ordered to
disclose the information.
31. Its view is that witnesses could be identified if the information was
released, despite not being named and being given a witness
Reference: IC-244064-J0P5
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identification key. The Trust considers that anyone with a knowledge of
the organisation is likely to be “able to identify individuals on the
report…quite easily”.
32. In the absence of a public interest defence for the Trust disclosing
information where the witnesses had been promised confidentiality, the
Commissioner is satisfied that disclosure of the majority of the report
would be an actionable breach of confidence that would be likely to win.
33. The Commissioner accepts that the exemption is engaged at part two of
the request. He has also decided that the majority of the information
requested at part six of the request should remain withheld under
section 41 of FOIA because it wouldn’t exist without the witness
testimony.
34. Whilst the terms of reference (part three) were not explicitly stated as
being withheld under section 41 the Commissioner is of the view that
they would not engage the exemption as they were not provided by
“any other person”.
Section 40 personal information
35. The Trust has cited section 40(2) of the FOIA with regard to parts two
and three of the request. However, the Commissioner does not propose
to look at this exemption in relation to part two as he has already
decided that it should be withheld under section 41.
36. Section 40(2) of the FOIA provides that information is exempt from
disclosure if it is the personal data of an individual other than the
requester and where one of the conditions listed in section 40(3A)(3B)
or 40(4A) is satisfied.
37. In this case the relevant condition is contained in section 40(3A)(a)2
.
This applies where the disclosure of the information to any member of
the public would contravene any of the principles relating to the
processing of personal data (‘the DP principles’), as set out in Article 5
of the UK General Data Protection Regulation (‘UK GDPR’).
38. The first step for the Commissioner is to determine whether the withheld
information constitutes personal data as defined by the Data Protection
Act 2018 (‘DPA’). If it is not personal data then section 40 of the FOIA
cannot apply.
2 As amended by Schedule 19 Paragraph 58(3) DPA.
Reference: IC-244064-J0P5
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39. Secondly, and only if the Commissioner is satisfied that the requested
information is personal data, he must establish whether disclosure of
that data would breach any of the DP principles.
Is the information personal data?
40. Section 3(2) of the DPA defines personal data as: “any information
relating to an identified or identifiable living individual”.
41. The two main elements of personal data are that the information must
relate to a living person and that the person must be identifiable.
42. An identifiable living individual is one who can be identified, directly or
indirectly, in particular by reference to an identifier such as a name, an
identification number, location data, an online identifier or to one or
more factors specific to the physical, physiological, genetic, mental,
economic, cultural or social identity of the individual.
43. Information will relate to a person if it is about them, linked to them,
has biographical significance for them, is used to inform decisions
affecting them or has them as its main focus.
44. The withheld information as a whole contains witness input which the
Commissioner accepts could lead to the identification of individuals.
However, the personal data exemption was not cited for the report
(investigation) as a whole.
45. The Commissioner has concluded that part three of the request does not
contain information that could lead to the identification of any individual.
46. In the circumstances of this case, having considered the withheld
information, the Commissioner is not satisfied that the information
relates to any individual. This information therefore does not fall within
the definition of ‘personal data’ in section 3(2) of the DPA.
Section 21 – information accessible to applicant by other means
47. Section 21 of FOIA provides that information which is reasonably
accessible to the applicant otherwise than under section 1 is exempt
information.
48. The Trust refused to provide the requested information at parts one, two
and three of the request under section 21 of FOIA. However, as the
Commissioner has already decided that the information held under part
two of the request should remain withheld under section 41 of FOIA, he
does not propose to consider it further.
Reference: IC-244064-J0P5
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49. The Trust claims that the terms of reference for the investigation are
reasonably accessible to the complainant for reasons that cannot be
disclosed here but a letter was sent to the complainant which included
the following: “The Trust’s values and behaviours framework were
utilised to assist in the assessment of findings and support the
conclusions and recommendations.” Its refusal to provide the
information was based on the specific circumstances of the
applicant/complainant.
50. The Trust states that its values have been “refreshed since 2020. But
are still broadly the same and available on its website via this link -
Our vision and values - North East Ambulance Service - NHS Foundation
Trust (neas.nhs.uk). It argues that this is accessible to the complainant.
51. Conversely, the complainant argues that the letter referred to (14 May
2020) does not contain the requested information at part one. Their
view is that the letter is “ambiguous and obfuscates any clear and
meaningful information in relation to the investigation terms of
reference…”
52. Although the Commissioner understands that the Trust’s view is that the
terms of reference were provided to the complainant in May 2020, this
was sent approximately 33 months before the request. The information
was very succinct and directed the complainant to “broadly the same”
values which is inadequate. The information in the public domain does not
match what the applicant asked for. The same reasons would apply to the
recommendations requested at part three.
53. Having seen the withheld information, the Commissioner does not
accept that section 21 of FOIA applies to the information requested at
parts one or three of the request.
54. As section 21 is not engaged, the Trust must release the information
requested at part one and part three of the request (with the exception
of one paragraph which is exempt under section 41 of FOIA) as set out
at the beginning of this decision notice.
Other matters
55. The length of time it takes a public authority to conduct an internal
review cannot be considered in a decision notice because it is not a
formal requirement under the FOIA. Where a public authority chooses to
do so, the code of practice established under section 45 of the FOIA sets
out, in general terms, the procedure that should be followed. The code
states that reviews should be conducted promptly and within reasonable
timescales.
Reference: IC-244064-J0P5
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56. The Commissioner has interpreted this to mean that internal reviews
should take no longer than 20 working days in most cases, or 40
working days in exceptional circumstances.
57. The complainant asked for an internal review on 2 March 2023 and the
Trust produced an internal review on 28 April 2023. However, as a result
of unknown factors, the review was not received at that time. It was not
received until August 2023. The Trust has accepted that this occurred.
The Commissioner expects the Trust to ensure that this does not occur
in future, as far as this is possible.
Reference: IC-244064-J0P5
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Right of appeal
58. Either party has the right to appeal against this decision notice to the
First-tier Tribunal (Information Rights). Information about the appeals
process may be obtained from:
First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LE1 8DJ
Tel: 0203 936 8963
Fax: 0870 739 5836
Email: grc@justice.gov.uk
Website: www.justice.gov.uk/tribunals/general-reg...
59. If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website.
60. Any Notice of Appeal should be served on the Tribunal within 28
(calendar) days of the date on which this decision notice is sent.
Signed ………………………………………………
Janine Gregory
Senior Case Officer
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire