Published: 06/01/2005, Volume II5, No. 5937 Page 18 19
As the full force of the Freedom of Information Act is unleashed, information commissioner Richard Thomas' remit is to ensure that organisations are doing all they can to allow public access. For the NHS, the impact will be huge
Freedom of information is very interesting. No really, it is. When the full force of the legislation came into force this week, NHS organisations - from hospitals to single-handed GPs - found themselves legally obliged to provide any information that the public sees fit to demand, with a few exceptions.
As the biggest collection of organisations included under the terms of the Freedom of Information Act, the NHS has a lot on its plate.
Hence the soothing tones of Richard Thomas, the government's information commissioner since 2002. After a relatively serene time while the first elements of the act came into play last year, 2005 is when the legislation really bites. Will he turn out to be the red-tape king or the great information liberator?
The casual observer might be forgiven for thinking that putting together a publication scheme - the main task public organisations had to complete last year - was a pretty impressive achievement. In fact it largely consisted of making a comprehensive list of what most organisations had made public in some form already.
As Mr Thomas says: 'Two years ago we laid down some minimum standards, and I am the first to recognise that they do not go much further than what is already in the public domain. Our strategy was to get everyone into the fold.' And all NHS organisations did indeed meet the October deadline.
Hooray for them. The problem arises if they think the hard part is done.
Mr Thomas seems relaxed about the lack of any indication of the public appetite for information. He says his 'anecdotal' evidence on the NHS is that 'some [organisations] are well advanced and some have scarcely begun'.
'Most Whitehall departments have given staff at all levels comprehensive training and support - I do not know that trusts have done that. I suspect at the front line there is quite a long way to go. We have made the assumption that GPs and doctors are aware of the publication scheme - that may be wrong and we will be testing it out over the next two or three years.' Freedom of information online chat groups set up for the NHS featured plenty of contributions along the lines of, 'had the publication scheme for three months and still no requests, what was the point?' - an attitude which exasperates Mr Thomas. The whole point of a good scheme is to make information accessible in the first place so requests are not necessary.
And Mr Thomas admits that public awareness of the schemes is low.
Looking to other countries' experience, he says there will not be 'a surge of interest on day one'. But, he continues, 'when the media, and tabloid media especially, point out examples of what can and cannot be disclosed that will increase public awareness'.
'You will see a steep rise over the second half of the year followed by plateauing as more and more information comes out.' One of the likely by-products is not actually connected with the act: research suggests publicity will make it more likely that patients request information about themselves, even though this comes under the Data Protection Act. But it will still mean more work.
The future lies in constantly upgrading the publication schemes.
'More and more bodies are waking up to the benefits of proactive disclosure because they see the need to be open.
They have realised that the more they put into the publication scheme, the less hassle they will get.' 'Five or six years down the track we may say, 'What is the fuss is about?' because we have got into the routine of disclosure. Ironically, in the future we may see more and more requests being turned down because all the stuff that can be disclosed has been.' This means turning the usual attitude - publish what you really have to - on its head.
Mr Thomas emphasises the increasing importance of reputation management: 'A good organisation's risk register will include reputation.
Amid all the rhetoric of being open and transparent, this is going to be one of the tests. Enlightened managers are embracing the freedom of information spirit and the ones who are dragged, kicking and screaming, will have a lot of problems with their organisations.' An area that goes to the heart of this mindset is e-mails. Many managers will regard e-mail as an informal mode of communication quite different from official documents. Their speed and direct connection to an individual makes them seem off the cuff and private.
Mr Thomas 'recoils' from the very idea. E-mail is fair game. 'I draw no distinction between e-mails and other communications. Look at what came out during the Hutton inquiry [into the circumstances of the death of Iraq weapons expert Dr David Kelly]. If that can be disclosed without bringing the government to its knees, then I think the same applies to the health sector.' One of the limits on public access, and one people might find curious, is that trusts can opt not to disclose if it costs over£450 in administration to do so. This would appear to let organisations with very disorganised systems off the hook.
Mr Thomas admits it might seem to be a perverse incentive, 'but organisations need to be well run, and if we found some were so chaotic that time after time they said 'sorry we can't find it', I have powers to promote good practice under the act.' Another contentious issue is how much information has to be routinely retained and for how long.
Last month the Daily Telegraph reported that some public organisations were busy destroying as much as possible before the legislation came into force: Mr Thomas has seen no evidence that 'it is happening to any great extent'.
A similar report in The Times claimed that civil servants were deleting archived e-mails ahead of the deadline.
The act is not in fact prescriptive about retention - the main thing is to decide what has a business or historical value and have a clear disposal schedule. He makes the point that one of the problems highlighted by the Soham inquiry in the wake of the murders of Jessica Chapman and Holly Wells was that 'if you do not have the informationhandling systems there is a danger that you get swamped with too much information and lose sight of what is really important'.
One of the obvious issues is the performance of individual clinicians.
'There is a strong public interest in knowing what you can expect from a health professional.
'As a broad principle, the more senior the practitioner the more they must expect to see the results of their performance in the public domain.' He says the same principle applies to managers' salaries.
There has even been concern that clinician appraisals could be made public, although Mr Thomas is 'very doubtful' they would be exposed.
'Lack of context' is often the cry that goes up in response to the great unwashed getting information. 'I am familiar with the risks of the public taking it out of context - well, publish the context! There is no exemption for public stupidity, or for [organisational] embarrassment.' Although there has been an emphasis on members of the public making requests, companies have been the biggest requesters in most countries, either when bidding for contracts, or annoyed at not getting them.
Disclosure during the actual tendering process is likely to be deemed against the public interest, says Mr Thomas, 'but things might change'.
'A year later, public money is being paid and information on contractual terms may be accessible.' There is also potential in the law to include certain private sector organisations performing public functions (railways or indeed hospitals). Independent treatment centres will be watching closely.
There are 23 exemptions to access, but 16 have a public interest test.
Organisations have 20 working days to respond to written requests - these can be made to any employee.
People dissatisfied with a response can make a complaint to the information commissioner's office.
www. information commissioner. gov. uk