Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  GIA/835/2012

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal, brought with the permission of Upper Tribunal Judge Williams, against a decision of a First-tier Tribunal (Information Rights) made on 30 December 2011. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the First-tier Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal.

 

The facts

2. On 5 August 2010 the Appellant made a request to the Second Respondent (to which I will refer as “the PCT”) under the Freedom of Information Act 2000 (FOIA) in the following terms:

 

“This is a formal FOI request for a …. copy … of the letter described as being dated 3.6.10 from Janet Soo-Chung …… to Tony Halsall Chief Executive of UHMB Trust concerning the meeting between Ms Soo-Chung and Mr Halsall which reportedly took place on 1.6.10. This meeting reportedly was arranged to discuss ‘service issues at UHMB’. If there is a response to this letter from Mr Halsall or any other UHMB employee or director, I formally request an electronic copy of that as well.”

 

The “UHMB Trust” there referred to is the University Hospitals of Morecambe Bay NHS Trust (“the Trust”).

 

3. The Appellant had become aware of the meeting on 1 June 2010 and the letter dated 3 June 2010 from (I think) references to them in published Minutes, or extracts of Minutes, of meetings of the PCT’s Professional Executive Committee.

 

4. The PCT responded on 3 September 2010 stating:

 

“I confirm that the information requested is held by the PCT. The PCT holds a letter from Ms Soo-Chung to Mr Halsall of 3 June 2010. Whilst there is no direct reply to this letter, the PCT does hold a letter from Mr Halsall to Ms Soo-Chung dated 14 June 2010 which follows on from the letter of 3 June and relates to the content of that letter.”

 

5. The letter of 3 September went on to state that the PCT considered that the information was exempt from disclosure under sections 31(1)(g) and 31(2)(j) and/or section 36 and/or section 40 of FOIA . The letter went on to give the reasons for reliance on those provisions, but stated that the PCT had not yet fully considered the public interest test relevant to setions 31 and 36. On 17 September 2010 the PCT wrote again to the Appellant stating that it no longer relied on section 36, but that it had now considered the public interest in relation to section 31 and was of the view that the public interest in withholding the information outweighed the public interest in disclosing it, and explained why.

 

6. The Appellant requested an internal review, but was notified by the PCT in a letter dated 15 October 2010 that the persons undertaking the review had concluded that the PCT’s actions in handling and responding to the Appellant’s request had been appropriate and in accordance with the PCT’s obligations under FOIA.

 

7. On 21 October 2010 the Appellant complained to the First Respondent (“the IC”) about the way in which his request had been handled.

 

8. During the course of the IC’s investigations the PCT provided to the IC copies of the letters of 3 and 14 June, and agreed to disclose to the Appellant a redacted version of the letter of 14 June, on the ground that the part disclosed was already in the public domain in the form of the Trust’s public Quality Accounts for 2009/10. The disclosed part of the letter of 14 June consisted of about a page of text, under the heading “serious untoward incidents.” The Appellant was further informed, at the time of the disclosure of this redacted version, that the full version of the letter consisted of 8 pages [110].

 

9. The IC’s Decision Notice was signed on 7 April 2011. The IC’s decision was that the withheld information was exempt from disclosure under sections 31(1)(g) and 31(2)(j) of FOIA. The IC therefore did not go on to consider issues arising under section 40(2).

 

10. The Appellant appealed against the IC’s decision.

 

11. The IC’s response to the appeal was settled by counsel. The response included the following:

 

“5. The [letter dated 14 June 2010] was subsequently disclosed to the Appellant in redacted form, as its substance had been placed in the public domain (though not by the PCT). The disputed information in this appeal therefore comprises the letter of 3 June 2010 only.

 

6. It is important to note that, although it does relate to some of the contents of the disputed information, the letter of 14 June 2010 is not a direct reply to the letter of 3 June 2010. Therefore, disclosure of the letter of 14 June 2010 does not have the effect of revealing the contents of the disputed information.”

 

12. One reading of the IC’s response might be that the reason why no part of the letter of 14 June was “disputed information” was that that letter was not a reply to the letter of 3 June and therefore did not strictly fall within the terms of the Appellant’s request. However, I do not think that that was a point which was open to either the IC or the PCT at that stage, given that the PCT had, in my view, treated the letter of 14 June as within the request, and the IC’s decision had in my view also proceeded on that basis. It was certainly not a point which it would have been open to the PCT to take after 1 July 2011, because on that date the PCT refused a further request by the Appellant for the withheld part of the letter of 14 June on the ground that it was a repeated request (see para. 21 below). The First-tier Tribunal in para. 3 of its Statement of Reasons plainly treated both letters as being within the scope of the request.

 

13. In any event, the better reading of para. 5 of the IC’s response is in my judgment that it was accepted that the letter of 14 June 2010 did fall within the scope of the original request. On that footing, the second sentence of para. 5 was a complete non sequitur, given that only a small part of the letter of 14 June had been disclosed to the Appellant. It would seem that at the time of preparing the IC’s response a misunderstanding must have arisen. The second sentence of para. 5 appears to be explicable only on the basis that the writer assumed that the parts of the letter of 14 June which had been withheld were insignificant, which was far from being the case. The disputed information in my view plainly consisted not only of the letter of 3 June but also the withheld parts of the letter of 14 June.

 

14. The PCT’s written response to the Notice of Appeal was brief and for the most part adopted the IC’s response.

 

15. Para. 10 of the Appellant’s reply to those responses took issue with paras. 5 and 6 of the IC’s response:

 

“In [paras. 5 and 6] the redacted letter dated 14 June 2010 is mentioned – the IC states that this letter relates to some of the contents of this information, whereas I maintain that as this letter was cited by intent, but not by date, in the FOI request it is disputed information, but that the relevant part has been removed by the redaction. Having seen the letter, the IC states that the substance of the letter is what remains in the redacted version sent to me on 30 March 2011 from which at least 1 side of A4 containing nothing of substance has been removed. What remains is of no interest to me, so I tend to disagree with the IC’s statement that the disputed information now comprises only the letter dated 3 June 2010, although I am happy to agree that the redacted letter does not reveal the disputed information. ……………………………”

 

16. The reference in that reply to “at least 1 side of A4” having been removed by means of the redaction seems to indicate that the Appellant had at that stage forgotten that he had been told that the withheld parts of the letter of 14 June totalled some 7 pages.

 

17. On 29 June 2011 a Judge of the First-tier Tribunal gave directions in relation to the appeal, which included a direction that the appeal was to be determined on the papers, on the basis of witness statements and written submissions. Pursuant to the directions open and “closed” bundles of documents were prepared. The closed bundle included the letter of 3 June, and the full versions of the letter of 14 June and of the report (referred to in para. 21 below) prepared for the PCT Board meeting of 25 June 2010.

 

18. The IC’s written submission in the appeal included the following (emphasis as in the original):

 

“7. The Appellant in paragraph 10 of the Appellant’s reply raises the issue of whether the letter of 14 June 2010 …….. forms part of the disputed information. The Appellant states that what remains in the redacted version is of no interest to him and that he therefore disagrees with the “Commissioner’s statement that the disputed information now comprises only the letter dated 3 June 2010, although I am happy to agree that the redacted letter does not reveal the disputed information.”

 

8. Whilst the Appellant may dispute with the Commissioner whether the letter of 14 June 2010 is a reply to the letter dated 3 June 2010, the Appellant nevertheless appears to accept that the letter of 14 June 2010 does not fall within the scope of the Appellant’s request.”

 

19. Para. 8 of that submission seems to me to represent a misreading of paras. 5 and 6 of the Appellant’s reply. As I read the Appellant’s reply he was contending that the undisclosed part of the letter of 14 June did form part of the requested information, and that he was entitled to require disclosure of it.

 

20. Para. 2.3 of the PCT’s written submission in the appeal (which was written without sight of the IC’s written submission) stated:

 

“It can be noted that [the Appellant] was provided with redacted extracts from [the letter of 14 June] disclosing information which had already been made public. IC’s response, para. 5, suggests that the disclosure of the redacted version of [the letter of 14 June] means the disputed information comprises only the PCT letter. The PCT submits that this is not correct as a significant amount of the exempt information in [the letter of 14 June] remains withheld.”

 

21. In evidence before the First-tier Tribunal was correspondence showing that on 5 June 2011 the Appellant had made a further request under FOIA. The requested information included the letter of 3 June 2010, the full version of the letter of 14 June 2010, and a copy of a report on “service issues at [the Trust]” which had been prepared for a PCT Board meeting on 26 May 2010. On 1 July 2011 the PCT replied refusing to provide the letter of 3 June or an unredacted version of the letter of 14 June on the ground that the request for those documents was a “repeated request” to which s.14(2) of FOIA applied. The PCT did provide a redacted version of the Board report. The withheld parts were refused on the same grounds as had been relied upon in relation to the request made in August 2010.

 

22. The appeal was considered on the papers on 4 October 2011, by a Judge of the First-tier Tribunal and two lay members. The decision was signed and issued on 30 December 2011.

 

The First-tier Tribunal’s decision

23. The First-tier Tribunal (by a majority) dismissed the appeal. It first concluded (as I read its decision) that the disputed information comprised only the letter dated 3 June 2010. It held, next, that on the correct construction of section 31(1)(g) and section 31(2)(j) the information fell within the scope of the exemption in those provisions. However, the dissenting member (who was one of the lay members) was of the opposite view on the question of construction, and his reasons were set out in detail in the Statement of Reasons. The majority then went on to find that the exemption was engaged because disclosure of the information would be likely to prejudice the PCT’s exercise of its function of monitoring and improving health care services provided to it by the Trust. Finally, the majority found that the balance of public interest favoured withholding the information.

 

24. The part of the First-tier Tribunal’s reasons relevant to the scope of the disputed information was as follows:

 

4. The letter of 14 June 2010 was subsequently disclosed to the Appellant in redacted form, as its substance had been placed in the public domain (though not by the [PCT]). There is some disagreement between the [IC] and the [PCT] as to whether the disputed information that comprises this appeal still includes the letter of 14 June 2010. The [IC] states that since it has been disclosed already, it no longer forms part of the disputed information. The [PCT], however, contends that the letter dated 14 June 2010 does form part of the disputed information on the basis that a significant amount of information in the letter dated 14 June 2010 remains withheld. The Tribunal rule that the letter dated 14 June 2010 in its redacted form, as already disclosed to the Appellant, no longer forms part of the disputed information.

 

5. In relation to the letter dated 3 June 2010 (“the disputed information”), the [PCT] in its letter dated 3 September 2010 sought to rely on …………….”

 

The appeal to the Upper Tribunal

25. The Appellant then applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal. That application is not in the papers before me. I proceed on the footing that it did not expressly contend that the First-tier Tribunal had been wrong as to the identity of the disputed information.  

 

26. On 7 February 2012 the chairman of the First-tier Tribunal refused permission to appeal.

 

27. The Appellant accordingly applied to the Upper Tribunal for permission to appeal. His grounds of appeal did not draw attention to the First-tier Tribunal’s error in relation to the scope of the disputed information. His grounds essentially sought to attack the First-tier Tribunal’s conclusion that the balance of public interest favoured maintaining the exemption.

 

28. On 6 June 2012 Upper Tribunal Judge Williams gave permission to appeal “to consider if the [IC] and First-tier Tribunal have interpreted [FOIA] section 31(1)(g) and 31(2)(j), read with section 2 of that Act, correctly in the context of the established facts of this appeal.” In para. 5 of the grant of permission Judge Williams said that considerations relevant to the construction issue were “separate from consideration of the proper role of the Upper Tribunal in considering an appeal about the exercise by the [IC] and the First-tier Tribunal of the balancing of public interests required by section 2. As the appellant has expressly raised that issue I will consider that also.”

 

29. Judge Williams directed written submissions in the appeal, and stated that he was currently minded to direct an oral hearing, but would decide that after receipt of the written submissions.

 

30. The IC’s submission in this appeal restated in para. 4 the IC’s contention that it was necessary to determine whether “disclosure of the information in the letter of 3 June 2010 would be likely to prejudice the exercise by the PCT of its functions for the purposes of protecting persons other than persons at work against risk to health and safety arising out of or in connection with the actions of persons at work.”

 

31. Neither the PCT’s submission nor that of the Appellant in reply referred further to the issue of the scope of the disputed information.

 

32. On 20 December 2012 Judge Williams directed an oral hearing of the appeal, the Appellant having requested one.

 

The scope of the disputed information: conclusions

33. It is not possible to be sure whether, if the First-tier Tribunal did in fact regard the disputed information as comprising only the letter of 3 June, that error  was one of substance, without examining the withheld parts of the letter of 14 June. The Upper Tribunal did not obtain copies of the open and closed bundles which were before the First-tier Tribunal until they were provided, at my request, a few weeks before the hearing of this appeal. They were therefore not before Judge Williams when he gave permission to appeal.

 

34. During the course of pre-reading the papers for the appeal, the day before the hearing, the First-tier Tribunal’s error in relation to the scope of the disputed information became apparent to me. I of course raised it at the hearing on 20 March 2013, at which the Appellant appeared in person and Mr Oliver Sanders of counsel appeared on behalf of the PCT. The IC was not represented, Judge Williams having specifically directed that he need not be. Mr Sanders made some submissions on the point, but in the circumstances I gave both parties permission to provide additional submissions in writing, which they have helpfully done. The Appellant states that he continues to contend that the withheld parts of the letter of 14 June form part of the disputed information, but that “I do not dispute over whether this statement can be taken into consideration because of the point in the proceedings of this case at which I have made it explicit.” I am not sure exactly what he means by that. His main point in this appeal has been that the First-tier Tribunal did not weigh the public interest properly. In performing the public interest balancing exercise it is clearly crucial to identify the withheld information correctly. I therefore assume that the Appellant is not intending to abandon this point, if it remains open to him.

 

35. Mr Sanders submits that “the Tribunal’s approach to the scope of the request and the disputed information in this case is unclear from its reasons but it would have been logical for it to treat the [letter of 3 June] and the [letter of 14 June] as falling within scope and the UT could not determine that the Tribunal did otherwise without engaging in what would be, in truth, impermissible speculation.” I agree with Mr Sanders that the last sentence of para. 4 of the First-tier Tribunal’s decision is consistent with it having treated the withheld part of the 14 June letter as being disputed information. It says that the disclosed part of that letter “no longer forms part of the disputed information.” However, as I have already said, when one goes on to read the first sentence of para. 5 it is plain that the Tribunal was treating the information in dispute as comprising only the letter of 3 June 2010. That is confirmed when one reads the chairman’s refusal of permission to appeal, which in para. 9 refers twice, in the context of the disputed information, to “the letter” rather than “the letters”. I do not think that there can be any element of “impermissible speculation” involved in reaching that conclusion. The first sentence of para. 5 is only explicable, it seems to me, if the First-tier Tribunal thought (contrary to PCT’s submission, summarised by the First-tier Tribunal in para. 4 as being that “a significant amount of information in the letter dated 14 June 2010 remains withheld”) that the redacted parts of the letter of 14 June were of no real significance – for example that they consisted of names or the like.

 

36. Secondly, Mr Sanders submits that it should not be open to the Appellant to rely on this point at this late stage of the appeal. He submits that, had the point been taken earlier, the PCT could have applied to the First-tier Tribunal for its decision to be corrected under Rule 40 of the Tribunal Procedure (First-tier Tribunal)(GRC) Rules 2008. That provides that a First-tier Tribunal “may at any time correct any clerical mistake or other accidental slip or omission in a decision, direction or any document produced by it.” However, in my judgment it would only be possible to conclude that this was an error of a type which could be corrected under Rule 40 if the Tribunal intended to state that the disputed information comprised both letters, but as a result of some form of clerical error referred only to the letter of 3 June. I do not think that that can have been the case, particularly when one bears in mind the reference, twice, to “the letter” in the refusal of permission to appeal. I do not see how the First-tier Tribunal could have worded the first sentence of para. 5 of its decision, and the refusal of permission, in the way that it did if, when considering the substantive issues which arose in the appeal (i.e. the issues of prejudice under s.31, and the public interest balancing exercise), it had done so in relation to both letters, and not just one of them. In my judgment therefore any purported exercise by the chairman of the power to correct clerical errors would have been highly suspect.

 

37. If, as in my view appears probable, the First-tier Tribunal intended to refer to the disputed information as comprising only the letter of 3 June, then this was an error of substance of considerable potential importance. The question of prejudice under s.31 and the public interest balancing exercise had to be performed in relation to the particular information withheld. It is not in my judgment safe to assume that the outcome of the public interest balancing exercise would necessarily have been the same if it the First-tier Tribunal had treated the withheld parts of the letter of 14 June as also being within the scope of the disputed information.

 

38. Mr Sanders further submits that, had the point been taken earlier by the Appellant, the First-tier Tribunal could have reviewed its decision under Rule 44.

 

39. Section 9(4) of the Tribunals, Courts and Enforcement Act 2007 provides that where a First-tier Tribunal has under s.9(1) reviewed a decision it may in the light of the review (a) correct accidental errors or (b) amend reasons for the decision or (c) set the decision aside. By s.9(5), where the First-tier Tribunal sets a decision aside, it must either re-decide the matter concerned or refer the matter to the Upper Tribunal for decision.

 

40. By Rule 44 the First-tier Tribunal may only undertake a review of a decision (a) pursuant to Rule 43(1) (review on an application for permission to appeal and (b) if it is satisfied that there was an error of law in the decision.

 

41. By Section 9(10) of the 2007 Act a decision of the First-tier Tribunal may not be reviewed under subsection (1) more than once, and once the First-tier Tribunal has decided that an earlier decision should not be reviewed under subsection (1) it may not then decide to review that decision under that subsection.

 

42. By Rule 43(1), on receiving an application for permission to appeal the First-tier Tribunal must first consider, taking into account the overriding objective, whether to review the decision in accordance with Rule 44. In the present case the chairman of the First-tier Tribunal did not, before refusing permission to appeal, expressly consider whether to review the decision.

 

43. If the error in relation to the identity of the disputed information had been identified by the Appellant in his application to the First-tier Tribunal for permission to appeal, it would not in my judgment have been open to the chairman of the First-tier Tribunal to amend the reasons given for the decision, under s.9(4)(b) of the 2007 Act. On the footing, which as I have said is in my judgment the only possible explanation for the wording of the decision, that the First-tier Tribunal mistakenly considered that only the letter of 3 June was in issue, its fact finding in relation to the issues of prejudice and the public interest balancing exercise were performed only in relation to the letter of 3 June. If the chairman had amended those reasons so as to include the withheld parts of the letter of 14 June in the disputed information, he would in effect have been adding findings of fact in relation to important matters which the Tribunal did not actually consider at the time of the original decision. That would not have been permissible: see the decision of a 3 Judge panel in JS v SSWP [2013] UKUT 100 (AAC), especially at para. 40.

 

44. The only course which the chairman could have adopted on a review under Rule 44 would therefore in my judgment have been to set aside the First-tier Tribunal’s decision as wrong in law, and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal.

 

45. It does not follow that the PTC has not been prejudiced by the Appellant’s failure to take the point. If he had taken it in his application to the First-tier Tribunal for permission, and the First-tier Tribunal’s decision had been set aside at that stage, the costs of the appeal to the Upper Tribunal would have been avoided. Judge Williams did not give permission to appeal in relation to this point, because it was not raised before him. It would be open to me to refuse to allow the point to be raised now on appeal. However, in deciding whether to give permission to raise it, I bear in mind (i) that the Appellant has of course throughout been in the position of not having seen either the letter of 3 June or the withheld part of the letter of 14 June; as I have already said, in the absence of that information it is impossible to judge whether the omission from the disputed information of the withheld parts of the letter of 14 June was capable of being of any significance; and (ii) that it would have been open to the PCT itself to point out the error on receipt of the First-tier Tribunal’s decision, and to invite the chairman to consider what to do about it. I do not therefore think it right to refuse permission to appeal to raise this point, and I therefore give permission to do so.

 

46. It therefore in my judgment follows that the First-tier Tribunal’s decision was wrong in law, and must be set aside, on the ground that it did not regard the withheld parts of the letter dated 14 June 2010 as being part of the disputed information, and/or proceeded on the (in my judgment) plainly mistaken view that the withheld parts of the letter of 14 June 2010 were of no consequence.

 

47. It would in my judgment plainly not be appropriate for me to re-make the First-tier Tribunal’s decision. The questions of prejudice, arising under section 31, and the public interest balancing exercise, are questions which are peculiarly suitable for determination by a First-tier Tribunal, composed of a Judge and two lay members.

 

48. As the First-tier Tribunal’s decision has to be set aside on this ground, it is unnecessary for me to consider other points raised in the appeal unless to do so will or may be of assistance to the new First-tier Tribunal. The issue of the construction of s.31(1)(g) with 31(2)(j) is plainly such an issue.

 

The construction of section 31(1)(g) with 31(2)(j) of FOIA

49. Sections 30 and 31 of FOIA provide (so far as directly material):

 

“30(1)  Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of –

 

(a) any investigation which the public authority has a duty to conduct with a view to it being ascertained –

(i) whether a person should be charged with an offence, or

(ii) whether a person charged with an offence is guilty of it,

(b) any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or

(c) any criminal proceedings which the authority has power to conduct.

 

(2) Information held by a public authority is exempt information if –

 

(a) it was obtained or recorded by the authority for the purposes of its functions relating to –

(i) investigations falling within subsection (1)(a) or (b),

(ii) criminal proceedings which the authority has power to conduct,

(iii) investigations (other than investigations falling within subsection (1)(a) or (b)) which are conducted by the authority for any of the purposes specified in section 31(2) and either by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under any enactment, or

(iv) civil proceedings which are brought by or on behalf of the authority and arise out of such investigations, and

(b) it relates to the obtaining of information from confidential sources.

 

31(1) Information which is not exempt information by virtue of section 30 is exempt

information if its disclosure under this Act would, or would be likely to, predudice -

(a) the prevention or detection of crime,

(b) the apprehension or prosecution of offenders,

(c) the administration of justice,

(d) the assessment or collection of any tax or duty or of any imposition of a similar nature,

(e) the operation of the immigration controls,

(f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained,

(g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2),

(h) any civil proceedings which are brought by or on behalf of a public authority and arise out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under an enactment, or

(i) any inquiry held under the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 to the extent that the inquiry arises out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under an enactment.

 

(2) The purposes referred to in subsection (1)(g) to (i) are –

(a) the purpose of ascertaining whether any person has failed to comply with the law,

(b) the purpose of ascertaining whether any person is responsible for any conduct which is improper,

(c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise,

(d) the purpose of ascertaining a person’s fitness or competence in relation to the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on,

(e) the purpose of ascertaining the cause of an accident,

(f) the purpose of protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration,

(g) the purpose of protecting the property of charities from loss or misapplication,

(h) the purpose of recovering the property of charities,

(i) the purpose of securing the health, safety and welfare of persons at work, and

(j) the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work.”

 

Construction: the First-tier Tribunal’s decision

50. The First-tier Tribunal’s decision recorded in paragraph 10 that the Appellant did not challenge the IC’s finding that the disputed information fell within the scope of section 31(1)(g) with section 31(2)(j), and continued:

 

“For the avoidance of doubt, the Tribunal finds by a majority that this finding was correct, given the real risk of prejudice to the Second Respondent’s exercise of its functions of monitoring and improving of health care services provided to it by the Trust.”

 

51. That was the extent of the reasoning of the majority on the question whether the disputed information fell within the scope of section 31(1)(g) with section 31(2)(j). The minority member of the Tribunal disagreed on the question of construction, and his reasons are set out in full at the end of the decision. The Appellant in effect adopted those reasons as his submissions on this part of the appeal. It is therefore convenient to set out the minority member’s reasoning in full:

 

“28. Broadly, the purpose of section 31 is to exempt information if its disclosure would, or would be likely to, prejudice the law enforcement activities specified therein. Section 31 must be read with section 30. Section 30 provides an exemption for information held for the purposes of investigations and proceedings conducted by public authorities in, primarily, criminal matters. However, many public authorities have other law enforcement roles, which do not necessarily, or solely, involve criminal proceedings. Section 31(1) lists a number of specific matters, some of which are ancillary to the functions covered by section 30, and some of which (such as tax collection or the operation of immigration controls) are free standing law enforcement functions. The link between the two sections is made clear by the opening words of section 31: “Information which is not exempt information by virtue of section 30 is exempt information if …” the requirements of section 31 are met.

 

29. Section 31(1)(g) is a general provision: “the exercise by any public authority of its functions for any of the purposes specified in subsection (2)”. The purposes listed in section 31(2) relate not only to the activities listed in section 31(1), but also to investigations or civil proceedings provided for in section 30(2)(a)(iii) and (iv).

 

30. Between them, sections 30 and 31 provide a scheme of exemption, subject to the balance of public interest test, for information held for the purposes of criminal investigation and prosecution and for a range of other investigatory, regulatory and enforcement purposes provided for in a wide range of enactments. Section 30 is engaged if the information is held for the purposes of criminal investigation or prosecution. Section 31 is engaged only if a prejudice test is satisfied; essentially, if disclosure would, or would be likely to, prejudice investigation and subsequent enforcement activity.

 

31. The purposes specified in section 31(2) fall into three broad categories. The first (s.31(2)(a) to (e)) comprises general investigatory activities relating to failure to comply with the law, improper conduct, regulatory action in pursuance of any enactment, fitness or competence in relation to regulated professions or as a company director, or the causes of accidents. The second category (s.31(2)(f) to (h)), is concerned with investigation or enforcement activities pursuant to the legislation governing charities. The third category (s.31(2)(i) and (j)) deals with health and safety.

 

32. Section 31(2)(i) is concerned with the health, safety and welfare of persons at work, and could well be engaged in relation to investigations relevant to the enforcement powers of a public authority such as the Health and Safety Executive.

 

33. Section 31(2)(j) is concerned with “the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work.”

 

34. In the view of the minority member, the purposes of the other elements of subsection (2) place section 31(2)(j) in its proper context. That context is, as the nature of the other elements, and the relationship to section 30 makes clear, law enforcement. Section 31(2)(j) might be engaged in relation to the investigatory functions of the Health and Safety Executive, the Air Accidents Investigations Branch, local authorities in relation to their responsibilities for shops and office premises to which the public has access, and similar functions of other public authorities. The purpose of section 31 as a whole is to safeguard a range of law enforcement activities from prejudice that would, or would be likely to, arise from disclosure of information. The overall purpose of section 31 is further indicated by the side heading “Law Enforcement”. 

 

35. It does not appear to the minority member that section 31 is intended to catch routine monitoring or quality assurance arrangements. It would only be if such activities gave rise to investigation with a view to law enforcement that it would be engaged. He is reinforced in this view by the separate provisions of section 33. These deal with audit functions and, like section 31, are subject to a prejudice test. Section 33(1)(a) deals with financial audit, and section 33(1)(b) applies to functions relating to:

 

“the examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions.”

 

36. In paragraph 17 of his decision notice [the IC] records that [the PCT] explained that its relevant function, for the purpose of section 31(2)(j) is its duty, as commissioner of healthcare services, to oversee the safe and effective delivery of those services. In paragraph 18 of his decision notice [the IC] said that he required the function identified by a public authority in relation to section 31(1)(g) to be a function which is specifically entrusted to the relevant public authority to fulfil. He noted the duty placed on NHS bodies by section 45(1) of the Health and Social Care (Community Health and Standards) Act 2003 to:

 

“put and keep in place arrangements for the purpose of monitoring and improving the quality of health care provided by and for that body.”

 

37. In the view of the minority member, neither the oversight of “safe and effective delivery” of service, nor “monitoring and improving the quality of health care” are law enforcement activities, of the sort caught by section 31. By contrast, it could be argued (although [the PCT] did not do so) that these activities fall squarely within section 33(1)(b).

 

38. The minority member has reviewed carefully the content of the disputed information to consider whether it relates to any responsibility that [the PCT] may have for law enforcement in relation to the purpose specified in section 31(2)(j). The information is simply not of that genus. It deals with issues of performance, but there is nothing to suggest that any law enforcement activity was in contemplation. Accordingly, the minority member concludes that section 31(1)(g) with section 31(2)(j) is not engaged.”

 

Construction: the parties’ submissions

(i) Submissions by the IC

52. In a written submission in this appeal the IC submitted as follows. The minority member’s view is that section 31(1)(g) does not apply because the disputed information dealt with issues of performance, but without any law enforcement activity being in contemplation. The minority member’s construction is too narrow. Whilst the majority of the exemptions in section 31 may relate to the enforcement of a specific law (which may explain the marginal note “law enforcement”), section 31(1)(g) is the exception. The wide wording suggests that this exemption is not solely restricted to “law enforcement” but has a wider application, though only if the public authority can show there is a statutory obligation imposed upon it relating to any of the purposes in section 31(2) which gives rise to that function. Healthcare bodies fall into this category by virtue of the legislation imposing specific duties on them, going beyond the general duty on every employer, in s.3 of the Health and Safety at Work Act 1974, “to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.” In particular, section 45(1) of the Health and Social Care (Community Health and Standards) Act 2003 places the PCT under a duty to “put and keep in place arrangements for the purpose of monitoring and improving the quality of health care provided by and for that body.”

 

(ii) The PCT’s submissions

53. In his written submission on the PCT’s behalf, Mr Sanders helpfully summarised the minority member’s view as being that the wording, “context” and “side heading” of s.31 and its relationship with s.30 suggest a confinement to “law enforcement” activities to the exclusion of “routine monitoring or quality assurance arrangements” which do not give rise to “investigation with a view to law enforcement.” Mr Sanders went on to submit as follows.

 

54. The purpose of the opening words of s.31 is simply to give primacy to section 30 where there would otherwise have been overlap, because s.30 does not require prejudice to the relevant activity to be established. It is not correct to narrow the meaning of s.31 by reference to the scope of section 30.

 

55. The following factors indicate that s.31(1)(g) is expressly and intentionally broad in its potential reach:

 

(1) Section 31(1) itself expressly extends to a range of regulatory, investigative and other activities and functions going beyond “law enforcement”. The operation of immigration controls and the maintenance of good order in prisons (s.31(1)(e)-(f)) may require or entail “law enforcement”. However, they also involve operational activity which is administrative, executive or governmental in nature but which would not ordinarily be understood as “law enforcement.”

 

(2) Section 31(1)(g) is not limited to specific law enforcement bodies.

 

(3) Neither is it limited to law enforcement functions. “Functions” must be understood as meaning any power or duty exercised by a public authority for a specified purpose whether conferred by or under statute, the common law or the Royal Prerogative. If “functions” had been intended to be limited to law enforcement functions, this would have been made explicit.

 

(4) A construction which limits section 31(1)(g) to law enforcement functions is inconsistent with the fact that the list of purposes set out in section 31(2) covers matters of “ascertainment” and “protection” etc. capable of being pursued independently of “law enforcement”.

 

(5) The minority member’s differentiation between “law enforcement” activities and “routine monitoring or quality assurance arrangements” which do not give rise to “investigation with a view to law enforcement” is vague and uncertain and therefore not something to be lightly imported into legislation without a strong reason for doing so. In this case the PCT may not have been exercising functions with an immediate view to law enforcement measures, but it does not follow that this could not follow depending on the circumstances. The logic of s.31 is to protect information relating to activities relating to compliance with standards etc. but which may or may not lead on to law enforcement action. The provision is therefore eminently capable of embracing “routine monitoring or quality assurance arrangements” provided one of the purposes specified in section 31(2) is engaged.

 

(6) There is no reason to apply a restrictive gloss to s.31 because the exemption is qualified (not absolute) and so the public interest balancing exercise mandated by s.2(2)(b) of FOIA will ensure that it will not operate to prevent disclosure without good reason.

 

56. The sidenote “law enforcement” (which is converted into a heading in various print and online reproductions of FOIA) should not be used to narrow the breadth of s.31. To do so would deprive section 31(1)(c) to (i) and (2)((b) to (j) of much their meaning and their residual scope would be “fundamentally vague and uncertain”.

 

The role of the PCT

57. On 1 April 2013 most of the PCT’s functions were transferred to the Lancashire North  Clinical Commissioning Group, under the new NHS structures which then took effect. That does not affect anything which I have to decide. For convenience I refer to the previous structure in the present tense.

 

58. The PCT’s role was helpfully summarised in the witness statement dated 12 August 2011 of Claire Campbell, then the PCT’s Assistant Chief Executive. There is also helpful background material in the report in February 2010 by the National Quality Board entitled “review of early warning systems in the NHS – Acute and Community Services” which was also in evidence before the First-tier Tribunal. In addition, I have looked in outline at some of the relevant statutory provisions. The position appears to be in outline as follows, so far as material.

 

59. The primary functions of the PCT include those of providing and developing high quality primary and community health services that meet the needs of the local population in a cost effective way, commissioning or purchasing hospital care and other specialist treatment, and putting and keeping in place arrangements to monitor and improve the quality of healthcare provided by and for the PCT. In performing these statutory functions, the PCT buys or commissions care to meet the clinical needs of the local population by way of a range of contracts with various local providers of health care, such as NHS Trusts.

 

60. However, the PCT is not a regulatory body as such. In relation to non-Foundation Trusts (which was the status of the Trust at the material time) the main regulator of clinical care is the Care Quality Commission. The CQC is empowered to register all health and social care providers in order to licence them to provide services. In addition, the CQC has a duty to regulate those providers and ensure that they meet the essential standards of quality and safety. The CQC will liaise with PCTs when carrying out reviews of NHS Trusts and will ask their opinion of services.

 

61. The system of regulation by the CQC was established by the Health and Social Care Act 2008. The IC’s decision in this case placed reliance on the duty imposed on NHS bodies by s.45 of the Health and Social Care (Community Health and Standards) Act 2003 to “put and keep in place arrangements for the purposes of monitoring and improving the quality of health care provided by and for that body.” However, by the dates material to the IC’s decision the new regulatory structure established by the 2008 Act had come into effect. The 2008 Act had amended s.45 of the 2003 Act so that it no longer applied to NHS bodies in England. However, at the same time s.23A was added to the National Health Service Act 2006. By s.23A(1) “each Primary Care Trust must make arrangements to secure continuous improvement in the quality of health care provided by it and by other persons pursuant to arrangements made by it.” The duty under s.23A(1) of the 2006 Act therefore replaced the duty under s.45 of the 2003 Act.

 

62. The report of the National Quality Board which I referred to in para. 58 above included (at p.24) the following. From April 2010 the regulatory and performance framework would place three core requirements on NHS healthcare providers in relation to quality: (i) a requirement to meet the essential levels of safety and quality set by the new system of registration; (ii) a requirement to meet national priorities as set by the NHS Operating Framework for England – performance against these is then built into the national standard contract and (iii) a requirement to meet all other contractual obligations (over and above registration and national priorities). As to (i), although PCTs will look to the CQC for assurance about a provider’s registration status, “their proximity to and relationship with the provider organisation will mean that they are well placed to spot the early signs of non-compliance with registration requirements”. Any failure to meet the second and third core requirements will be routinely managed by PCTs through contract management processes. At p.30 of the report is a helpful diagram illustrating the “structures and processes for safeguarding quality in the NHS”. Primary care trusts are shown as contributing by commissioning care from NHS Trusts and others and controlling quality by means of “contract management”.

 

Health and Safety at Work

63. Section 1(1) of the Health and Safety at Work Act 1974 provides that the provisions of Part I of the Act shall have effect with a view to “(a) securing the health, safety and welfare of persons at work; (b) protecting others than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work; (c) …….” By s.2(1) it shall be the duty of every employer “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.” By s.3(1) it shall be the duty of every employer “to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.” By s.11(1) it is the duty of the Health and Safety Executive to do such things and make such arrangements as it considers appropriate for the general purposes of Part I of the Act. By s.14 the Executive is empowered to direct investigations and enquiries. By s.18(1) it is the duty of the Executive to make adequate arrangements for the enforcement of the relevant statutory provisions, and by s.18(2) the Secretary of State is empowered by regulations to make local authorities responsible for the enforcement of the statutory provisions to such extent as may be prescribed.

 

64. There is a potential overlap, in relation to healthcare providers, between the functions of the CQC and those of the Health and Safety Executive (HSE). The HSE website states as follows, in relation to regulation of health and social care:

 

“Our role in patient and service user incident investigation

HSE leads on employee health and safety.  HSE may also consider investigation of patient or service user deaths or serious injuries, where there is an indication that a breach of health and safety law was a probable cause or a significant contributory factor. However, other regulators e.g. Care Quality Commission (CQC), General Medical Council (GMC) and Nursing and Midwifery Council (NMC), often have much more specific legislation, and may therefore be better placed to secure justice, or necessary improvement in standards.  The roles of these bodies are described below, where we also link to relevant agreements with them.

The web page further states:

“HSE and CQC have a Liaison Agreement ^[which sets out a framework to ensure that both organisations share appropriate information in a timely manner and where necessary, co-ordinate their activities in relation to incidents resulting in avoidable deaths or major injuries to patients or service users. At present this agreement only covers healthcare settings regulated by CQC.”

65. Annex 1 to the Liaison Agreement includes the following:

“HSE is responsible for the enforcement of the Health and Safety at Work etc.

Act 1974 and associated legislation throughout Great Britain. Its work includes

ensuring that ‘risks to people’s health and safety from work activities are

properly controlled’.

Within the health and social care sector, HSE’s role includes health and safety

risks to healthcare workers and others who might be affected by the work

activity. Local authorities also have some enforcement responsibility for social

care.

HSE has a role in relation to patient safety under section 3 of the Health and

Safety at Work etc. Act 1974 (HSWA) and investigates certain patient related

deaths and serious incidents in accordance with its incident selection criteria.

However, as the scope of section 3 of HSWA is so wide-ranging, HSE’s

policy is that it will not, in general, investigate matters related to clinical

judgement, or quality of care, as others (such as the General Medical Council and CQC in England) regulate in this area.”

 

First-tier Tribunal authority

66. I have not been referred to any authority, at a level higher than the First-tier Tribunal, on the construction of s.31(1)(g) with s. 31(2)(j). I was referred to two authorities at First-tier Tribunal level.

 

67. In Galloway v IC and The Central and North West London NHS Foundation Trust (EA/2008/0036; 20 March 2009) Mrs Galloway sought to obtain under FOIA witness statements prepared for the Trust’s investigation into what happened before her late husband fell unconscious whilst in the Trust’s care at Middlesex Hospital. The Trust relied on the exemption in section 31(1)(g) together with 31(2)(a), (b), (c), (e), (i) and (j). The Tribunal held:

 

“……. we are satisfied that the Trust had a function to investigate the incident concerning Mr Galloway either by virtue of the guidance or its common law duty and so as to satisfy s.45(1) of the Health and Social Care (Community Health and Standards) Act 2003. In this case we have been told that the aim of the [investigation] was not to apportion blame, but to learn how to prevent serious incidents occurring again. Whilst this may be the primary purpose we are also told that if something untoward had been found, jobs would potentially have been at risk. We consider that the purpose of the [investigation] concerning Mr Galloway was to investigate what had happened primarily to ensure that any concerns were addressed, so that future similar incidents might be prevented. This would fall within one of the purposes listed in section 31(2)(b) or (e) or (j).”

 

68. In Bousfield v IC and Alder Hey Children’s NHS Foundation Trust (EA/2012/0092; 10 January 2013) the applicant, a journalist working for Private Eye, made a request under FOIA for a copy of a report prepared by the Alder Centre. The Alder Centre was a unit in a children’s hospital which provided a counselling service for bereaved parents and also for hospital staff. The report was to ascertain the prevalence and causes of stress amongst staff working in the operating theatres. The Trust relied on s.31(1)(g) in conjunction with 31(2)(i) and (j). The Tribunal concluded as follows:

 

“6. The breadth of the exemption claimed is somewhat surprising reading the statute as a whole. The terms seem so diffuse as to defy any analysis of the policy behind it.

 

7. Counsel for Alder Hey founded his submission on section 31(1)(g) and section 31(2)(i) and (j) FOIA. In our judgment, section 31 does not have the meaning for which counsel contends.

 

8. Reading the statute as a whole, it is in section 38 FOIA that Parliament seems to us to have made clear the policy of the Act on health and safety issues. There the test is much more focussed requiring that disclosure should endanger someone’s physical or mental health or safety. That section is wider in some senses than the exemption claimed – but understandably so. The same protection extends to all risks, not just those incurred as a result of actions at work. It is also, in some senses, narrower since it does not extend to the “welfare” of a public authority’s employees. It also looks to the direct effect of disclosure on an individual rather than on the effect of disclosure on the exercise of a public authority’s functions.

 

9. The opening words of section 31 provide a link with section 30. The heading is “Law Enforcement” and reading section 31 as a whole, this is in our view exactly what the exemptions therein contained are about. They concern public authorities with specific responsibilities for law enforcement and are not intended to engage, for example, anything a public authority might wish to do for the welfare of its employees.

 

10. We therefore conclude that the exemption in section 31 FOIA is not engaged.”

 

Construction: analysis and conclusions

69. If one reads s. 31(1)(g) and 31(2)(j) literally and in isolation, action by the PCT would certainly appear to be capable of falling within them. If the PCT exercises any of its powers (“functions”) for the purpose of, for example, seeking to ensure that a hospital’s mortality rate in respect of a particular category of routine operation improves, it would appear to be acting for the purpose of protecting patients (i.e. “persons other than persons at work”) against risk to health or safety arising out of or in connection with the actions of “persons at work” (i.e. healthcare workers).

 

70. However, it is striking that the wording of section 31(2)((i) and (j) appears to have been lifted from section 1(1)(a) and (b) of the Health and Safety at Work Act 1974 (with the small difference that in s.31(2)(j) the word “actions” is substituted for the word “activities” in s.1(1)(b)). That might suggest that s.31(1)(g), when taken in conjunction with s.31(2)(i) and (j), is aimed essentially at the enforcement of health and safety legislation by the Health and Safety Executive or other bodies empowered to enforce it. That impression is arguably reinforced by the sidenote “law enforcement”, and by some at least of the other activities specified in s.31(1) and (2).

 

71. Further, there is, as a matter of immediate impression, a considerable difference between enforcement of health and safety legislation and the exercise by a PCT, as a commissioner of health care, of its function of monitoring and maintaining and improving the standard of health care provided by a hospital from which it commissions care. It is not to my mind particularly natural to think of  failures of medical standards or care in terms of a person at work causing a risk to a person not at work.

 

72. However, I have come to the conclusion that s. 31(1)(g) with 31(2)(j) are not limited to bodies subsisting for the purposes of enforcing health and safety legislation, essentially for the reasons advanced by Mr Sanders.

 

73. As to the significance of the sidenote (and later heading) “law enforcement”, Mr Sanders referred me to the following passage in Bennion on Statutory Interpretation (2008, 5^th ed) sec. 256, pp.747-8:

 

“A side note, marginal note or heading to a section is part of the Act. It may be considered in construing the section or any other provision of the Act, provided due account is taken of the fact that its function is merely to serve as a brief, and therefore possibly inaccurate, guide to the content of the section.”

 

74. Mr Sanders also referred me to para. 34 of the speech of Lord Hope (giving the opinion of the Committee) in R v Montila  [2004] UKHL 50, [2004] 1 WLR 3141:

 

“The question then is whether headings and sidenotes, although unamendable, can be considered in construing a provision in an Act of Parliament. Account must, of course, be taken of the fact that these components were included in the Bill not for debate but for ease of reference. This indicates that less weight can be attached to them than to the parts of the Act that are open for consideration and debate in Parliament. But it is another matter to be required by a rule of law to disregard them altogether. One cannot ignore the fact that the headings and sidenotes are included on the face of the Bill throughout its passage through the legislature. They are there for guidance. They provide the context for an examination of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are unamendable, they ought to be open to consideration as part of the enactment when it reaches the statute book.

 

75. The words “law enforcement” were in my judgment intended as a broad summary or indication of the scope of and reason for the exemptions in section 31. It is plain from reading the activities listed in s.31(1), and the purposes specified in s.31(2), that they include activities and purposes which go beyond actual law enforcement in the sense of taking civil or criminal or regulatory proceedings. They include a wide variety of activities which can be regarded as in aid of or related to the enforcement of (i) the criminal law, (ii) any regulatory regime established by statute, (iii) professional and other disciplinary codes, (iv) standards of fitness and competence for acting as a company director or other manager of a corporate body (v) aspects of the law relating to charities and their property and (vi) standards of health and safety at work.

 

76. In my judgment the PCTs were a sufficiently important part of the overall structure designed to ensure a safe healthcare system to mean that inclusion of their functions of monitoring and improving the standard of healthcare within s.31(1)(g) and 31(2)(j) is consistent with the use of the words “law enforcement” in the title. Those words were necessarily only a very broad summary of the content of the section 31. It is entirely possible, indeed, that the carrying out by the PCT of its functions might lead directly to the taking of regulatory action by the CQC or even action by the HSE.

 

77. I do not regard the presence of s.38 as detracting from that approach. It provides that information is exempt information if its disclosure under FOIA would or would be likely to endanger the health or safety of any individual. It is concerned with the situation where mere disclosure would endanger health or safety. Given that prejudice to the enforcement of health and safety legislation undoubtedly does fall within s.31(1)(g) with 31(2)(j), s.38 is in my judgment of no assistance on the question whether those provisions are wide enough to encompass prejudice to an NHS body’s duty to maintain standards of health care.

 

78. However, there are in my judgment two limitations inherent in s.31(1)(g) and 31(2)(j) which do need to be noticed.

 

79. First, in my view they can apply only where protection of the public against health and safety risks are among the public authority’s purposes. It is in my judgment probably not sufficient that, in the course of carrying out its purposes (being purposes not directly related to health and safety), a public authority engages in some activity for health and safety reasons. Thus, I think that 31(1)(g) and 31(2)(e) (“the purpose of ascertaining the cause of an accident”) would probably not apply to, for example, an internal investigation by a public authority, having no responsibility for investigating accidents more generally, as to why an accident to one of its employees had occurred. The public authority would in that example be doing no more than any private employer might do, and the fact that it was exercising statutory powers or powers given to it by its constitution would not bring the case within the words “the exercise by any public authority of its functions for …… the purpose of investigating an accident.” Similarly, in my view a public authority whose purposes have nothing to do with health or safety at work could not pray s.31(1)(g) and 31(2)(i) in aid in relation to measures which it was intending to take for the health and safety of its own employees. It may well be that for this reason (but not in my judgment for the reasons set out in paras. 8 and 9 of the decision) the Bousfield case (see para.68 above) was correctly decided on its facts. This is essentially the limitation for which the IC argued in its written submission in this appeal. The PCT in the present case clearly satisfies this condition.

 

80. The second condition inherent in s.31(1)(g) with 31(2)(j) relates to the description of the activity in s.31(2)(j). The health and safety at work legislation generally is concerned with preventing people being harmed, in the sense of being worse off, physically or mentally, than they would have been if they had not been affected by the work in question. That element is inherent in the words “protecting persons ……. against risk to health and safety  ……..” However, many lapses of standard in health care will not make someone worse off than if they had not been treated at all. The aim of hospital care is generally to make someone better than they would otherwise have been, and the effect of a lapse in standards is either that they do not get better at all, or do so to a lesser extent, or less quickly, than if the health care provided had been better. For example, if a PCT seeks to reduce the waiting times for replacement hip surgery, it does not seem to me that it is really acting for the purpose of protecting patients against “risk to health and safety” (although even that may be debatable).

 

81. But there are many consequences of poor hospital performance which plainly can properly be said to give rise to risks to health and safety, such as, for example, systemic errors which result in abnormally high death rates in connection with surgery for a condition which if untreated would not have been fatal, or which result in patients suffering an abnormally high rate of infection.

 

82. Exactly where the line falls between purposes falling within and those falling outside the wording of s.31(2)(j), in a medical context, may be difficult to determine. In general it seems to me that if the position is that systemically poor healthcare has or may have left patients in a substantially worse position than would have been the case if a reasonably competent standard of care had been provided, the case is capable of falling within s.31(2)(j).

 

83. In my view, therefore, it is not necessarily the case that every facet of exercise by a PCT of its function of seeking to improve healthcare can fall within 31(2)(j). To that limited extent I would agree with the minority member of the First-tier Tribunal when he said that section 31 was not intended to catch “routine monitoring or quality assurance arrangements.” In my judgment such arrangements may, but will not necessarily, involve the purpose of protecting persons against risk to health or safety. 

 

84. It was therefore in my judgment necessary in the present case for the First-tier Tribunal to examine the disputed information to see whether it related to purposes falling within 31(2)(j). The majority did not in terms indicate that they had done so.  However, without seeking to bind the new tribunal, it seems to me that the majority would have been entitled to conclude that the bulk, and very possibly all, the disputed information dealt with matters which were capable of giving rise to risks to patients’ health and safety, within the meaning of s.31(2)(j).

 

The public interest balancing exercise carried out by the First-tier Tribunal

85. As I have noted above, the Appellant’s focus has been on the First-tier Tribunal’s reasoning and conclusion in relation to the public interest balancing exercise required, in relation to this exemption, by s. 2(2) of FOIA. Because I am setting aside the First-tier Tribunal’s decision on other grounds, it is necessary for me to consider his contentions only in so far as my conclusions might assist the new First-tier Tribunal in carrying out the same exercise. Although the First-tier Tribunal’s reasoning was expressed very succinctly, it did not in my judgment go wrong in law. It did not fail to take into account material factors, or take into account immaterial ones. It was entitled to reach the conclusion which it did. In particular, it was in my judgment correct to hold, in para. 12 of the decision, that the relevant time as at which the competing interests fell to be considered was the time when the Appellant’s request under FOIA fell to be considered by the PCT. It was in my judgment also entitled to attach the significance which it did, in para. 13 of the decision, to effect which a decision requiring disclosure of the information might have had, by way of precedent, in limiting the flow of information between the PCT and the Trust. What I have said in this paragraph does not of course mean that the new tribunal will reach the same conclusion. It must carry out the balancing exercise for itself, entirely afresh.

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

9 April 2013