FOI40

Written evidence from the Foundation Trust Network (FTN)

1. The Foundation Trust Network (FTN) is the membership organisation for public providers of NHS services and gives a distinct voice to NHS Foundation Trusts and those working towards FT authorisation. The FTN has 216 members from across the acute, mental health, community and ambulance sectors. 2. We welcome the opportunity to submit the collected views of NHS providers on the operation of the Freedom of Information Act. We consulted our members in January 2012 and their feedback is summarised here it is clearly an issue of significant interest for members given the number of responses submitted in a relatively short time, and the commonality of issues raised across the sector. Executive Summary 3. The member responses were united in highlighting a concern that the Freedom of Information Act (FOIA) provisions were being used for commercial purposes rather than for scrutiny of issues in the public interest, for example: competitors determining whether to bid for services; alternative suppliers seeking to win business and requesting commercial information in respect of third parties; companies compiling databases of contact information for selling on.

4. There were also concerns raised about: the number of requests growing rapidly to the point of being overwhelming; and on a related point the level of resource that was necessary to give over to these requests, including administrative time, but also front-line clinical time; incorrect conclusions being drawn from FOI requests which had a negative reputational impact on the NHS. 5. The FTN fully supports the principles of openness and transparency, and is working with its member organisations to promote and share best practice in respect of communicating information between NHS foundation trust (FT) Boards, their governors and members, and the wider community, in order to enhance patient experience and drive quality improvement. Indeed one member reported a slowing of the rate of increase in requests after reviewing its publications policy and we are aware of a number of members looking at similar reviews.

FOI40
6. While it is difficult to quantify the time given over to requests across the sector (whether legitimate, inappropriate or vexatious), in light of the financial pressures being faced by NHS providers we consider it would be sensible to re- focus FOIA activity more clearly on matters of the public interest and to streamline the process for responding to legitimate requests. It is also vital to apply the FOIA provisions to all providers of NHS services, not just those in public ownership. Discussion 7. As highlighted above, members support the principles behind the FOIA, but members felt they had been inundated with inappropriate requests. Commercial requests 8. Many of the requests were from commercial organisations wishing to obtain intelligence on products or services provided to, or supplied by, the NHS provider, particularly on IT contracts. One member organisation reported that in their case commercially driven requests look set to overtake any other type of request origin (last year 30% compared to 37% media). This is a common observation, with many respondents reporting a similarly changing profile of requests towards business interests. We agree with the view reported in annex D of the MoJ memorandum that these requests are against the spirit of the act (footnote 172). 9. Another member reported: The [requests we get] are clearly from commercial companies who are merely trying to increase their awareness of potential business opportunities. I have no problem whatsoever with the concept of the Act which is to make Public Bodies even more accountable to the public indeed I actively support this. However I do feel the Act is being misused by commercial companies and would welcome an attempt to perhaps limit its scope in that respect. 10. Other examples included: We spend a lot of time responding to FOI requests from commercial companies who then sell the information on for database purposes. A lot of requests are in relation to IT- how much do we have, who supplies it, what systems do we use. All are clearly from suppliers or consultants wanting work. Regular requests come about clinical policies/ use of specific drugs - so the company can create a commercial database. Others want names and structures just to use for marketing.

FOI40
We are particularly concerned at the proportion of FOIs relating to sales and marketing and companies research, where information is being procured simply to derive commercial advantage. It is also clear that individuals and institutions are also passing their research costs directly to the public sector using the FOI mechanism. Accordingly we think that around 50% of the requests we receive are outside the original intention of the Act. 11. One member felt that requests should be limited to individuals, interest groups and the media, and that requesters declare that they were not requesting on behalf of a corporate/ commercial organisation. Another suggested that commercial organisations should be required to make their approach through the appropriate procurement process. Level playing field 12. As some of these commercial interests are direct competitors for NHS contracts, it was felt that the ability to lodge requests with FTs but not independent sector providers of public services meant that an uneven playing field had been created. FTs are unable to seek out comparable competitor information from independent sector organisations. There was support for the principle of equity being applied, to all providers of public services, whatever their ownership model. The growing number, and costs, of requests 13. One member reported a 31% increase in the number of requests over the last year, and certainly the experience of significant growth, in particular the last three years, is one that many NHS providers highlighted. 14. The growth in numbers experienced by respondents was accompanied by regular comments on the additional time given over to, and costs of, responding to requests: I would estimate that for a small trust the cost is upwards of 50k per annum just to employ dedicated staff to receive, log and process requests it does not take into account time of other staff involved in reviewing and determining appropriate responses. 15. Another respondent reported: We have a dedicated officer coordinating requests and responses, supported by staff in the services who have to respond with the detail of the requests, all supported by senior officers who provide expertise in reaching judgements as to the appropriateness of the request and the response made. There is further bureaucracy in operating and responding to the appeals mechanism, which has little effort for the applicant but considerable overhead for the Organisation.

FOI40
16. Reports of 1 2 whole-time equivalent staff being employed to respond to requests are not atypical, possibly more in larger FTs. In some cases members reported that the staff resource given over to responses was impacting on the delivery of the principal purpose of the organisation, as staff who would otherwise, for example, book appointments, were diverted from this task by administering responses for one or two days. One member presented an extremely useful overview of their costs which illustrates the point well: Dedicated FOI resource is 0.5 w.t.e. administrator, plus 0.4 w.t.e. senior manager vetting time, c 60k Requests are frequently multi-faceted requiring input from right across the organisation which is unquantifiable Expenditure on legal advice on issues of interpretation of the Act Best estimated average cost per response in excess of 500 Estimated cost in 2011/12 between 175,000 and 250,000 Multiplied across a financially challenged public sector, significant sums of public money are wasted. 17. We were informed of one NHS provider experiencing difficulties from repeated and vexatious requests from dissatisfied service users. Despite formally designating these requestors as vexatious (as defined by the Information Commissioners Office (ICO)) considerable resources had been expended in administering these requests. In one case the Trust was referred to the ICO by such a vexatious complainant, the Trusts stance was upheld by the ICO but still, considerable time was spent defending this case. Managing requests and the Publication Scheme 18. Each FOI request is different and a number of respondents reported that often requests had been framed so that data could not be presented in a readily available format. For example Many requests are for similar information but with subtle differences, e.g. covering different time periods; occupational groups; or departments. Each request is individually researched with the administration involved in individual response. 19. There was support from a number of members for existing data to be used where possible and a request for clarification of the provisions or guidance so that unreasonable time is not spent tailoring specific data requests when alternative presentation would meet the needs of the requestor.

20. Related to this point, some members reported that requesters of information frequently
demand that information is provided in a specified format and do not respond well to indications that it is freely available in an organisationally-determined form. The point about aggression can be applied more generally and instances of harassment or aggression have been reported for example when a requester is informed that the relevant information is not maintained by the FT, or when they have been informed that provision of commercially sensitive information would be a breach of confidence. 4

FOI40
21. In this latest engagement with members we were informed that one member had seen a slowing of the increase of requests for information following a review of their Publication Scheme - in many cases, where the information is already published on the scheme, or has been requested previously, the requestor is referred directly to the scheme (these referrals are not counted within the FOI request numbers). This approach to reviewing the information made available in the publication scheme was corroborated by other members. 22. Some members recommended that specific guidance is needed from the ICO on what can and cannot be disclosed through publications schemes. The ICO should improve clarity over the publication scheme in order to improve transparency and consistency in what is disclosed. 23. As a general point, the FT sector is keen to ensure that information flows between the FT Board leadership, the FT governors, members and wider public are sufficient to hold the organisation to account for the services it provides and as a means of securing quality improvement, on both patient outcomes and experience.

The fees / 18 hour threshold 24. Echoing points in the Ministry of Justice Memorandum concerning the setting of the threshold, there were views expressed that the fee notice level should be modified downwards and support for widening the activities included in calculation of the time given over to the response. A limit of six hours, beyond which a fee could be charged, was suggested. 25. Furthermore, as also highlighted in the memorandum, there was some support for a nominal fee - respondents drew parallels with the Data Protection Act and suggested that a fee be payable for every request, as for subject access requests. 26. One member highlighted the difficulty presented in the requirement to provide advice to the applicant to reframe the question when advising them that it will exceed 18hours to collect the information. It was considered unrealistic when considering existing resources for organisations to provide advice and assistance to applicants whose response cannot be met within the 18hour timeframe. Other issues raised by members

FOI40
27. There were a number of other issues raised in general terms that we should like to summarise as follows: Clarity on the distinction between data protection and FOI some trusts have been challenged on refusals to name staff other than Board members and NHS consultants, and feel that the position should be made clearer; Several members raised concerns about the blanket or Round robin nature of some requests for example, requests made via the Whatdotheyknow website, are often made to all or substantial numbers of NHS Trusts/ public authorities nationally - the costs multiplied across all Trusts contributes to the waste in time and resources. A number highlighted that a proportion of FOI requests were from students wanting information for dissertations and other research projects not directly in the public interest; Instances of multiple FOI requests being brought together to create a media story, or biased questions being put, with the subsequent conclusions drawn being incorrect, not only having an unwarranted negative reputational impact on the NHS but taking significant time to correct; Frequent requests from journalists for significant amounts of information which have no direct public interest benefit but which may be useful for future reference; members report it is apparent that a substantial proportion of what is requested is consigned to the bin and never used, regardless of the cost to the public purse; Members reported occasions where journalists and media researchers have used numerous pseudonyms to repeatedly make requests of Trusts - the aim being to avoid the requests being aggregated and hence information being withheld under section 12.

Concluding remarks 28. There is much reported to us which complements the findings of the Ipsos MORI research outlined in annex E of the MoJ memorandum. Our member feedback suggests the volume of requests is increasing significantly. The profile of FOI requestors is broadly comparable to the Ipsos MORI findings, though members report that businesses are increasingly using the Act. We consider there would be merit in reviewing the 18 hour threshold to a lower figure and consider that all providers of public services, irrespective of ownership model should be brought in scope of the Act. February 2012