Statutory bars on disclosure: don’t construe too widely

The Tribunal’s decision in Cubells v IC and Wrightington, Wigan & Leigh NHS Foundation Trust (EA/2011/0183) is notable for the approach taken to construing a statutory bar on disclosure for the purposes of s. 44 of FOIA. There are hundreds of bars. Usually, they were drafted prior to FOIA. Tricky issues often arise as to how widely the prohibition extends, especially in a FOIA world.

Mr Cubells’ mother died while in the care of the Trust. He complained to the Parliamentary and Health Service Ombudsman, who declined to investigate. Mr Cubells then made a request under FOIA for information passed by the Trust to the Ombudsman pursuant to his complaint, and internal Trust information about the complaint.

The Trust refused the request, relying on s. 44 of FOIA and the prohibition of disclosure imposed by s. 15 of the Health Service Commissioners Act 1993, which provides that:

“Information obtained by the [Ombudsman] or his officers in the course of or for the purposes of an investigation shall not be disclosed except-

(a) for the purposes of the investigation and any report to be made in respect of it…”

The Commissioner agreed – but the Tribunal did not. Interestingly, it allowed and considered submissions by Maurice Frankel of the Campaign for FOI in support of Mr Cubells’ appeal. Relevant points from those submissions included the following. The prohibition was designed to provide reassurance to those supplying information that no improper disclosure of that information will occur. The prohibition should not interpreted as meaning that any third party holding information which it happens also to have supplied to the Ombudsman was itself bound by the same prohibition. Otherwise, strange results would follow. For example, the Trust would be prevented from even sharing information which had been passed to the Ombudsman with a patient’s GP or another health authority into whose area the patient moved. On the ICO’s reading, the Trust would be bound indefinitely by a prohibition on disclosure apparently aimed not at the Trust but at the Ombudsman. That cannot have been what Parliament intended.

The Campaign for FOI also raised arguments under the European Convention on Human Rights: an outcome that resulted in a blanket prohibition on the disclosure of information about the medical treatment of a family member would breach Article 8 ECHR. Also, on the ICO’s reading, the prohibition would extend to a complainant as well – in other words, if a complainant passed information to the Ombudsman, they would thereafter be prohibited from disclosing it further. That would breach Article 10 ECHR.

Before the Tribunal, the ICO relied on the judgment of Mrs Justice Dobbs in R (on the

application of Kay) v Health Service Commissioner [2008] EWHC 2063 (Admin) in contending that the prohibition should regarded as extending to both those to whom information was passed by the Ombudsman as well as those from whom the Ombudsman obtained it.

The Tribunal disagreed. It distinguished Kay and concluded that the prohibition:

“should be interpreted as imposing a prohibition only on the Ombudsman and her staff. It may follow, from what we have said above, that the prohibition should continue to apply, or should be imposed, if the Ombudsman needs to disclose any of the information she has obtained to a third party. There is no inconsistency there. The information, once obtained during an investigation, should obviously not be released from the prohibition on disclosure just because it becomes necessary for the Ombudsman to disclose it to a third party. There is no logical reason, however, for the prohibition to be imposed on those holding information that has been shared with the Ombudsman. The profoundly unattractive consequences which Mr Frankel outlined demonstrate the absurdity of such an outcome.”

In reaching its conclusion, the Tribunal did not need to consider the ECHR arguments. Those arguments may well, however, be raised again in future cases.

Robin Hopkins