What can NHS Trusts do to deter companies abuse of FOI laws?

Private companies are increasingly using the Freedom of Information Act to obtain information from NHS Trusts for commercial gain, or to establish a database that they can sell on to other companies. But does this practice run against the spirit of the legislation? Ward Hadaway commercial partner Judy Baker talks to Elizabeth Davidson...

Some NHS Trusts have reported that freedom of information laws are being abused by private companies, who are using the legislation to obtain information they can use for commercial gain or even sell on to national suppliers. NHS managers say the use of the Freedom of Information Act 2000 in this way is expensive as it means they are having to spend time processing the requests and deciding whether the information is or is not too commercially sensitive to release. A spokesman from the NHS Confederation was recently quoted by The Times newspaper as stating: “At a time when many hospitals are in financial difficulties we cannot afford to spend time processing requests from private firms.” Given these concerns, what discretion do NHS Trusts have in deciding whether or not to answer requests for information? Judy Baker, commercial partner at Ward Hadaway, says: “The only discretion is to withhold information if it falls within one of the 23 exemptions in the Act, which include confidential information, personal information and trade secrets or other commercially sensitive information. The motive of the applicant is irrelevant. The related Code of Practice made under section 45 of the Act says: ‘Authorities should be aware that the aim of providing assistance is to clarify the nature of the information sought, not to determine the aims or motivation of the applicant. Care should be taken not to give the applicant the impression that he or she is obliged to disclose the nature of his or her interest as a precondition to exercising the rights of access, or that he or she will be treated differently if he or she does (or does not)’.” Isn’t it against the spirit of the legislation, as debated by Parliament, for private companies to use the Act in this way?

Baker says: “Not really: it was to be expected. Whilst the intention of the legislation is to make the public sector more accountable, in other jurisdictions which have had this legislation for much longer than we have, statistics show that about 36% of requests are from the private sector. In the US, figures are quoted as high as 80% of requests coming from the private sector. It is a benefit to the private sector in making the tendering process for public sector work much more transparent, and for the economy generally in making the private sector more competitive.”

Realistically, therefore, what can NHS Trusts do to deter private companies from doing this?

“They cannot,” says Baker. “There are safeguards built into the legislation to curb misuse. For example, where information requested is sensitive and its disclosure will prejudice either the Trust’s or a private company’s commercial interests, it may be withheld provided there are not overriding public interest reasons for its disclosure. "Although in the early days, this is a difficult and time-consuming process for NHS Trusts, it should get easier over time as case law develops. If responding to the request will take more than about two and a half to three days, the request may be refused or charged for under related fees regulations. If the information is protected by copyright, then although the NHS Trusts are permitted by the Copyright Designs and Patents Act 1988 to copy information in order to disclose it to private companies, private companies are restricted in what use they may make of the copyright-protected material. For example, they may not normally exploit it commercially without the permission of the copyright owner. "A new opportunity for NHS Trusts is to charge private companies for the right to exploit disclosed information under the new Re-use of Public Sector Information Regulations 2005, which came into force on 1 July 2005. Whereas the FOIA gives access to information, the PSI regulations give NHS Trusts and other public bodies the right to charge the private sector a reasonable fee to exploit that information.”

(13/09/05)

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Legislative annotations in other services:-
Freedom of Information Act 2000; Copyright Designs and Patents Act 1988