[Evans Vaccine] [Secrecy]
Access to official information
Investigations Completed July 2003 - June 2004
Department of Health
Case No: A.14/03
Refusal to provide information about the awarding of a contract to supply a stock of smallpox vaccine
Case No: A.14/03
Ms Branigan originally asked DoH for a number of pieces of information relating to the awarding of a contract to PowderJect Technologies PLC to supply a stock of smallpox vaccine. She then asked 17 Government Departments, including DoH, for information relating to contacts between their respective Ministers and representatives of PowderJect. Finally, she asked DoH for several pieces of information relating to the work of the sub- group of the Joint Committee on Vaccination and Immunisation, which had given advice on the choice of the particular smallpox vaccine strain. DoH declined to release most of the information sought by Ms Branigan and cited a number of code exemptions in justification. After a protracted investigation, beset by DoH delays, the Ombudsman recommended that almost all the information sought by Ms Branigan be released. Following a further exchange of correspondence, DoH agreed to the release of information which had already entered the public domain but either refused to address the remaining recommendations or refused to release the information recommended for disclosure. The Ombudsman criticised the manner in which DoH had handled Ms Branigan's information requests and for their failure to engage effectively with her own investigation.
(Following the issuing of the report the Permanent Secretary of DoH wrote to the Ombudsman agreeing to release further pieces of information recommended for disclosure, but again failed to address all the outstanding matters.)
1. Ms Branigan, a journalist, complained that the Department of Health (DoH) refused to supply her with information that should have been made available to her under the Code of Practice on Access to Government Information (the Code). I have not put into this report every detail investigated by the Ombudsman's staff but I am satisfied that no matter of significance has been overlooked.
3. Since the Code came into force, the Ombudsman has been able to consider complaints that, in breach of the Code, bodies within the Ombudsman's jurisdiction have refused to provide information that is held by them. Refusal to supply information might be justified if the information falls within one or more of the exemptions listed in Part II of the Code. The Code gives no right of access to documents: the right, subject to exemption, is only to information. My predecessors, however, have taken the view that the release of the actual documents was often the best way of making available information that the Ombudsman recommended should be disclosed. In accordance with paragraph 4.19 of the White Paper, they also accepted that refusal to release information which should have been released was sufficient to found a complaint to the Ombudsman. I can see no reason to depart from these established practices.
4. The Department for Constitutional Affairs (DCA) - until June 2003 the Lord Chancellor's Department (LCD) - have responsibility for overseeing the operation of the Code. That responsibility includes the provision of guidance and acting as the co-ordinating department for requests, such as Ms Branigan's, which are made simultaneously to several government departments (see paragraph 7). In cases where the request involves the disclosure of information about the conduct of Ministerial affairs, DCA are required to refer the matter to the Cabinet Office for advice. As these events took place for the most part before LCD became DCA, for simplicity I refer to LCD throughout this report.
(a) How many companies were given a copy of the specification of the proposed contract by DoH before it was awarded.
(b) Which companies were given copies of this specification, and on what dates.
(c) On what dates did DoH Ministers or officials meet each of these companies to discuss the contract before it was awarded.
(d) Which companies requested a copy of this specification but were not given one.
(e) On what date was the specification drawn up.
(f) On what date did Ministers decide to award the contract to Powderject.
Ms Branigan additionally asked for a complete copy of the specification. She also said that she understood that the Permanent Secretary had scrutinised the procurement methods used during the awarding of this contract and, again citing the Code, asked for a complete copy of all the documents the Permanent Secretary had looked at.
7 . On 30 April 2002 Ms Branigan wrote to 17 Government Departments, including DoH, requesting information relating to contacts between their respective Ministers and representatives of Powderject. Ms Branigan, citing the Code, asked to be told by each department:
(a) How many meetings had taken place between Ministers and representatives of Powderject since 1 January 2000.
(b) When and where did each of these meetings take place.
(c) Which Ministers attended each of these meetings.
(d) How many times representatives of Powderject had written to Ministers since 1 January 2000.
(e) On what dates were each of these letters written; and to which Ministers were each of these letters addressed.
(f) How many times Ministers had written to representatives of Powderject since 1 January 2000.
(g) On what date were each of these letters written; and which Ministers wrote each of them.
(h) How many representations had been made since 1 January 2000 by Ministers on behalf of Powderject to other parties.
(i) On what dates were each of these representations made; and to whom.
Ms Branigan stressed that she was not asking for any details of the contents of these letters and meetings.
8 . On 7 May 2002 DoH e-mailed Ms Branigan to acknowledge receipt of the two sets of information requests and said that someone would be in touch with her as soon as possible. On 27 May Ms Branigan e-mailed DoH to seek confirmation that, under the target time for responses contained within the Code, her requests would be answered in full by 7 June.
9 . On 29 May 2002 Ms Branigan e-mailed DoH with a further information request. This request related to the work of the sub-group of the Joint Committee on Vaccination and Immunisation (JCVI), which had been specifically convened to give advice on the choice of the particular smallpox vaccine strain to be purchased in order to protect the UK population from biological attack. Ms Branigan said that this advice had been provided prior to the awarding of the contract to Powderject. Ms Branigan asked, citing the Code, to be told:
(a) On what dates the sub-group of the JCVI had met to discuss the choice of smallpox vaccine strain.
(b) Who were the members of this sub-group.
(c) To which organisations did each of those members belong.
(d) Which members of the sub-group had declared an interest during these discussions, and what were each of those interests.
(e) On what date did the sub-group finalise their advice on the choice of the smallpox vaccine strain.
Ms Branigan also requested, citing the Code, copies of all the minutes and papers relating to the sub-group's discussions on the choice of the smallpox vaccine strain. Later that same day, Ms Branigan e-mailed DoH to amend her request. She said that she understood that the government had argued that there was a national security consideration concerning matters relating to the nation's ability to withstand a biological attack. Ms Branigan said that, given this, she wished to amend her request to cover the same information and documents but to allow for any sections which damaged national security to be edited out. She asked, with reference to any such edited sections, that she be provided with an indication of the type of information that had been removed. Ms Branigan also asked, again citing the Code, for copies of all the factual scientific papers compiled by the sub-group which had analysed the efficacy and experience of each different strain of the smallpox vaccine.
10. On 10 June 2002 DoH replied to Ms Branigan's e-mail of 27 May and said that they hoped to be in a position to reply very soon. On 11 June DoH e-mailed Ms Branigan to acknowledge receipt of her request of 29 May, again saying that a reply would be sent as soon as possible. That same day Ms Branigan e-mailed DoH about her original requests and said that, if she did not receive a response by 21 June she would refer the matter to the Ombudsman. On 18 June DoH e-mailed Ms Branigan to apologise for the time taken to respond to her requests. They said that they were still awaiting guidance from the Home Office (sic) and were, therefore, not yet in a position to give a full reply. On 20 August 2002 the then Ombudsman, having had Ms Branigan's complaint referred to him by the Member, issued a statement of complaint to the Permanent Secretary of DoH, inviting his comments by 11 September. As is customary, he also asked the Permanent Secretary to provide all the papers relevant to the complaint, including all the information sought by Ms Branigan by this date.
The Permanent Secretary's comments
12. The Permanent Secretary said that on 12 August the lead policy section had therefore been contacted on the basis that the April 29 request was now a matter of urgency and that they should respond immediately. The Permanent Secretary said that a member of this section had written to Ms Branigan on 13 August to say that they were now dealing with her request in this way but that, due to the work involved in pulling together the information she had requested, a response might take longer than 20 days. The Permanent Secretary outlined some of the problems faced by DoH in respect of securing permission to release the names of the other companies contacted regarding the smallpox vaccine contract and said that these were, regrettably, delaying the response. The Permanent Secretary said that DoH aimed to have a reply sent to Ms Branigan by the end of the following week and that the decision had been taken that this reply would cover both the 29 and 30 April requests.
13. In respect of the 29 May request, the Permanent Secretary said that DoH had initially incorrectly referred the request to the Medicines Control Agency for reply. The Permanent Secretary said that the Medicines Control Agency had then, correctly, referred the request to the appropriate DoH official but that, due to annual leave commitments, a reply had not been sent within the 20 day target time. The Permanent Secretary regretted and apologised for this failure, but added that he hoped that a reply would be sent to Ms Branigan shortly.
15. In respect of Ms Branigan's information requests of 29 May 2002 (paragraph 9), DoH said that a confidential meeting of the specially convened subgroup of the JCVI had taken place prior to the decision about the purchase of smallpox vaccine. However, specific details about the subgroup were confidential and experts had given their views on that basis. The information was, therefore, exempt from disclosure and DoH cited Exemptions 1(a) and 2 of the Code as applicable. They did, however, confirm that the subgroup had met on 30 November 2001 to discuss exclusively smallpox vaccine issues and that all JCVI members were required to declare their interests and academic affiliations. Details of these would shortly be made available on the internet.
16. Although some background information had been made available by DoH along with the letter of 29 October, further correspondence was necessary before all the relevant background papers were provided. This did not occur until 7 February 2003, a delay of almost five months. I regard that as most unsatisfactory.
The Code of Practice on Access to Government
(a) Information whose disclosure would harm national security or defence.
18 . Exemption 2 of the Code is headed "Internal discussion and advice" and reads as follows:
Information whose disclosure would harm the frankness and candour of internal discussion, including:
- proceedings of Cabinet and Cabinet committees;
- internal opinion, advice, recommendation, consultation and deliberation;
- projections and assumptions relating to internal policy analysis; analysis of alternative policy options and information relating to rejected policy options;
- confidential communications between departments, public bodies and regulatory bodies.
19 . Exemption 7 of the Code is headed "Effective management and operations of the public service" and reads as follows:
(b) Information whose disclosure would harm the proper and efficient conduct of the operations of a department or other public body or authority, including NHS organisations, or of any regulatory body.
20. Exemption 13 of the Code is headed "Third Party's Commercial Confidences" and reads as follows:
Information including commercial confidences, trade secrets or intellectual property whose unwarranted disclosure would harm the competitive position of a third party.
21 . In the preamble to Part II of the Code, under the heading "Reasons for Confidentiality", it states that:
'In those categories which refer to harm or prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available.
References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available.'
The National Audit Office Report
23. Through the publication of the NAO report some of the information withheld from Ms Branigan has now been put into the public domain. As I go on to explain later in this report, the fact that DoH consented to the disclosure of this previously withheld information has a direct bearing on the applicability of the exemptions they have cited.
"Information will be provided as soon as practicable. The target for response to simple requests for information is 20 working days from the date of receipt. This target may need to be extended when significant search or collation of material is required. Where information cannot be provided under the terms of the Code, an explanation will normally be given."
I fully accept that none of Ms Branigan's requests were of the simple kind that the Code envisages being answered in 20 working days. However, it is clear from the papers I have examined that none of Ms Branigan's requests were dealt with and concluded in a timely manner. In relation to the request of 29 April, it was only after the intervention of this Office that DoH finally clarified with LCD that no central guidance was to be provided in respect of it. This misunderstanding served to delay the eventual response very much longer than should have been necessary. I am critical of this failure. Ms Branigan's request on 30 April was the subject of central guidance, which was not provided to DoH until 12 August. That, I recognise, was outside their control. Yet DoH then decided that their response should be delayed by a further eight weeks in order that a single reply could be sent covering all three information requests. I have been presented with no cogent explanation as to why DoH thought it necessary to delay their response in this manner. DoH did not handle these information requests at all well.
25. This level of poor handling continued with Ms Branigan's request of 29 May 2002, which was initially passed in error to the Medicines Control Agency for a response. It was subsequently returned to the right quarter but a response was further delayed due to annual leave commitments within DoH. As a result, DoH again failed to respond to Ms Branigan as quickly as they ought to have done. Given the catalogue of errors and avoidable delays which has marked DoH's handling of Ms Branigan's requests, I asked the Permanent Secretary what steps he had taken, or was proposing to take, to ensure that his department handled future information requests in accordance with the requirements of the Code.
26 . I turn now to the question of the information sought by Ms Branigan. For ease of reference I shall consider each request in chronological order, starting with that of 29 April 2002 (paragraph 6). The Permanent Secretary has said that of Ms Branigan's requests listed as (a) to (f) in this report, only (c) remained outstanding and that this information was withheld under both Exemptions 7(b) and 13 of the Code. (It should however be noted that the answer given to question (b) did not provide the dates on which each of the companies was given a copy of the specification, nor was information provided in respect of question (e), the date on which the specification was drawn up. I return to these issues when considering the matter of the specification later in this report.) I note however, in respect of question (c), that the NAO report details the exact dates upon which DoH officials met four of the five shortlisted companies and had a telephone conference with the fifth to discuss the contract before it was finally awarded to Powderject: I therefore find that, as this information is now in the public domain, neither of the exemptions cited by DoH in respect of it can apply. I see no point in assessing whether or not those exemptions would have applied had the information remained withheld.
27. I turn now to the remainder of Ms Branigan's request of 29 April, which covered a copy of the specification drawn up by DoH and copies of the documents examined by the Permanent Secretary during his scrutiny of the procurement methods used during the awarding of the contract. As mentioned in paragraph 8 the Code gives an entitlement only to information, not to documents. The Permanent Secretary has said that a formal specification was not drawn up and that companies were not asked formally to tender because this procurement exercise was carried out subject to the exemptions provided for in the Public Supply Contracts Regulations 1995. There is therefore no specification document as such to be disclosed. A document was, however, created which set out DoH's key requirements in respect of smallpox vaccine and the areas in which it wished companies to provide information: this document was provided to each company following the meetings referred to in paragraph 26. In his comments to this office, the Permanent Secretary confirmed that he had examined two additional documents as part of his scrutiny of the procurement exercise: these were two submissions, dated 18 February and 5 March 2002 respectively, which related directly to the procurement options available. DoH have withheld the information contained within all these documents citing Exemptions 1(a) and 13 as being applicable.
28 . I shall look at each of these three documents in turn and assess the applicability, or otherwise, of the two exemptions cited by DoH. First, I consider the document that contains information relating to the procurement requirements. DoH have not identified any specific pieces of information within this document as being covered by either of the exemptions; rather they are saying that the two exemptions apply to the document in its entirety. Having examined the document I cannot find any information within it that would appear to fall within the scope of either of the two exemptions cited. Indeed, most of the key requirements set out there are already referred to either in the NAO report or in answers provided to Parliamentary Questions tabled following the awarding of the contract (e.g. Hansard PQ. 67545 11 June 2002: Column 1207W). Even if this were not the case, it is difficult to see how either of the exemptions cited could apply to the information at issue. Now that the contract has been awarded I can see no threat to national security in releasing details of the broad criteria to which the companies involved were required to give consideration. Nor do the criteria set out by DoH contain any information that might be said to affect the commercial position of a third party. I therefore recommend that the information be released.
29 . I turn next to the submission dated 18 February 2002. Again, DoH have not identified any specific pieces of information contained within this document which they believe to be covered by either of the exemptions cited. An examination of the submission shows that it contains a factual background briefing section, setting out the need for the procurement exercise, and the current position in relation to the responses received from each of the five shortlisted companies (whose names are already in the public domain). The submission goes on to list the procurement options available and makes a recommendation regarding a procurement strategy. Finally, the submission identifies two additional factors for consideration before reaching a conclusion. Attached to the submission is a table setting out in comparative terms the position of each of the shortlisted companies against the key procurement criteria. Having carefully studied this submission I can find within it no information falling within the scope of Exemption 1(a). This exemption is designed to protect information the disclosure of which would harm national security or defence. This includes information that could be of assistance to those engaged in terrorism. Were any information of this type included in the submission I would have no hesitation in finding Exemption 1(a) to be applicable; this, however, is not the case. This leaves Exemption 13, which is designed to protect from disclosure sensitive commercial information which would adversely affect those to whom the information relates. In this respect it is clear that the submission contains detailed information regarding, in effect, the tender positions of each of the shortlisted companies. This includes information on the production capacity and the quoted cost per dose for each company. I have no doubt that the companies who submitted this information did so in the quite reasonable expectation that it would not, if they were unsuccessful, be made publicly available. It is clear to me that the disclosure of this commercial information would harm the competitive position of the companies involved and, as such, is the type of information Exemption 13 is in principle designed to protect.
30. This, however, is only the first step. Having reached a decision on the applicability of Exemption 13 in principle, I must now consider the harm test (paragraph 21). This poses the question would any harm that might be caused by disclosing the protected information be outweighed by the public interest in making it available? In my view, it is clear that those shortlisted companies provided their 'tender' details to DoH in the quite reasonable expectation that they would not be made available to a wider audience. The information provided by each of the companies contains commercial details the release of which could harm their competitive position. I do not consider that this is a case where the public interest outweighs the harm that would be occasioned by the disclosure of the protected information. I find, therefore, that DoH correctly applied Exemption 13 to information of this kind contained in the submission. I see no reason, however, why the remainder of the information contained in the submission should not be released to Ms Branigan: this could most suitably be done by means of editing the existing document to remove the material covered by Exemption 13. I so recommend.
31 . I turn now to the submission dated 5 March 2002. DoH have again cited both Exemptions 1(a) and 13 as being applicable to the submission in its entirety. Having considered the submission it is clear that it spells out in greater detail the reasons behind the decision to purchase the new vaccine derived from the Lister strain of vaccinia rather than the New York strain. It also covers the reasons why DoH chose to procure a cell derived vaccine rather than the more antiquated animal derived method. There is therefore no information contained within the submission which relates to the commercial capabilities or tender details of any of the shortlisted companies. Given this fact, I have been unable to identify any information contained within the submission that would appear to be covered by the provisions of Exemption 13. I do not find, therefore, that this exemption can be successfully applied to any of the information contained within the submission. This leaves only the possible applicability of Exemption 1(a). In my view there are only two pieces of information which could be potentially covered by the provisions of this exemption. The first of these is the fact that the Lister strain was the preferred choice of the Ministry of Defence, the second that the Lister strain has been used by the Israeli government since 1996 to protect their armed services. Both these facts can be found in the NAO report and the latter is a matter of public record. Neither fact can, therefore, now fall within the scope of Exemption 1(a), as the Code cannot be cited to protect information already in the public domain. I find, therefore, that neither of the exemptions cited by DoH, in respect of this submission, are applicable and see no reason why the information contained in it (other than the identities of those officials receiving it) cannot be released.
32. Before leaving the letter of 29 April 2002 I turn finally to the unreleased factual information relating to the specification (see paragraph 26); the dates on which the specification was made available to the relevant companies and the date on which the specification was drawn up. There is, of course, no specification as such, simply a set of relevant criteria: it was however drawn up, and it was provided to the interested companies. I consider that this is purely factual information, the provision of which would not be in any way harmful or, indeed, covered by any of the exemptions cited elsewhere by DoH in relation to other information in this case. I therefore recommend that, to the extent that this information has not already reached the public domain, it is released to Ms Branigan.
33. I look now at Ms Branigan's information request of 30 April 2002 (paragraph 7). I should add at this point that I have taken the information sought to relate to contact between Ministers and representatives of Powderject acting on behalf of the company and not in any other capacity. The basis for DoH's response to Ms Branigan's request of 30 April would appear to be that the Government's policy in this area was set out in its response to the Sixth Report from the Committee on Standards in Public Life (Cm4817, July 2000), which was that it was not the Government's normal practice to release details of meetings with either private individuals or companies. The Government's response goes on to say that, "Ministers and civil servants meet many people as part of the process of policy development and analysis. Some of these discussions will take place on a confidential basis". I fully accept that some discussions between Ministers and representatives of companies will be undertaken on such a basis. However, a request for information should not be refused solely on the grounds that it is a class of information that it is not the Government's normal practice to release. The Code does not recognise class exemptions: the Code requires an assessment to be made in response to each individual information request. In that context, I go on to assess the merits of the two exemptions cited by DoH when withholding the information sought by Ms Branigan.
34. I shall look first at Exemption 7(b) (paragraph 19). This exemption is intended to prevent the disclosure of information where such a disclosure would be damaging to the work of the department concerned. DoH have given no detailed reasons to support their belief that the disclosure of the particular information requested by Ms Branigan would do damage to their work: I can therefore only speculate as to what that harm might possibly be. Certainly, the kind of information referred to in the Cabinet Office document entitled 'Guidance on Interpretation of the Code' in respect of this particular part of the exemption bears no relation to the kind of information sought by Ms Branigan. Indeed, I am mindful of the fact that, in answering one of the many questions raised in the House of Commons relating to the circumstances surrounding the awarding of the smallpox vaccine contract, the Minister of State for DoH confirmed that there had been no Ministerial contact with Powderject concerning the awarding of this contract (Hansard PQ.54656: 10 July 2002 Column 1040W). Given this fact, and in the absence of any more specific reasons as to why the disclosure of the particular information sought by Ms Branigan would harm the effective conduct of DoH, I do not consider that Exemption 7(b) of the Code can be held to apply.
35. DoH also cited Exemption 13 of the Code; again, however, they gave no indication in their comments either to this Office or to Ms Branigan as to why they thought this exemption applicable. Exemption 13 is designed to protect sensitive commercial information from any disclosure which would adversely affect those to whom the information relates. In assessing DoH's refusal to provide this information, therefore, I need to establish: (i) whether the information sought by Ms Branigan can accurately be described as a commercial confidence within the terms of the exemption; and (ii) whether its disclosure would be likely to harm the competitive position of Powderject or any other third party. There are a number of considerations that bear on these questions, but the essential point is whether or not the information can be described as both commercial and confidential; that is, does the information have greater value to the original possessor of that information; was it entrusted to the government in circumstances, whether express or implied, which made its confidentiality clear; and was the information treated consistently in a confidential manner by a third party ?
36. With this in mind, I think that it would be useful to look again at the information that Ms Branigan is seeking. Her request was for purely factual information about meetings held between Ministers and representatives of Powderject, any letters that were written, and any representations that were made. She did not ask for the minutes of any such meetings, details of the content of any such letters or the nature of any representations that were made. Given these facts, I find it difficult to see how such purely factual information can be described as having any intrinsic commercial value. In essence, the information sought by Ms Branigan is simply not information of the type covered by this particular exemption. In the light of these facts, I do not believe that Exemption 13 can be held to apply to any of the information sought by Ms Branigan. It is therefore my view that this information should be released.
37. I turn, finally, to the information sought by Ms Branigan in her request of 29 May 2002 (paragraph 9). Of these five requests DoH have already, in effect, answered Ms Branigan's requests at (a) and (e). However, DoH refused the remaining requests, together with Ms Branigan's request to be provided with the minutes of the meetings and any factual scientific papers compiled by the sub-group which analysed the efficacy and experience of each different strain of the smallpox vaccine, citing Exemptions 1(a) and 2 as being applicable (paragraphs 17 and 18). I shall consider these remaining individual requests in their order of appearance. First, Ms Branigan asked for the names of the members of the JCVI sub- group, details of the organisations to which they belonged and details of which members had declared an interest during the discussions and what each of those interests were. (I should reiterate at this point that Ms Branigan amended her original request to exclude from its scope any information that might be held to damage national security.) Again, I have been given no indication by DoH as to which aspects of the requested information they consider to fall within each of the exemptions cited. I have, therefore, considered the applicability of each exemption to the entirety of the information sought.
38 . It is clear from the minutes of the key meeting on 30 November 2001 that, of the 29 people present, only three were members of the JCVI. The remainder comprised, in part, experts in related fields such as virology, communicable disease control and smallpox eradication. There were also present representatives from both the Ministry of Defence and DoH. Of the three JCVI members present, DoH have already confirmed the identity of two and, as such, their presence is now a matter of public record. DoH have not explained why the identity of the third member cannot similarly be made public: I can therefore see no reason why this information should not also be disclosed. However, the case is not so clear-cut for those others present. It is clear to me that, given the nature of the subject under discussion at the sub-group, and the events that led to its formation, Exemption 1(a) is, in principle, applicable to the identities of those non-JVCI members who were present in their capacities as experts in specific fields; and that this is equally applicable to those present as representatives of both the Ministry of Defence and DoH.
39. However, Exemption 1(a) incorporates a harm test (paragraph 21), which poses the question: would the harm that might be caused by disclosure of the protected information be outweighed by the public interest (if any) in making it available? While I acknowledge that all matters relating to the United Kingdom's ability to withstand terrorist attacks, including biological attacks, are naturally issues of grave public concern, I believe, subject to my comments in the previous paragraph, that the information already released (and what I propose should be released - see paragraph 40) in relation to the identities of those who made up the membership of this sub-group is sufficient to satisfy the public interest in this particular case. I find, therefore, that Exemption 1(a) applies to the identities of members of the sub-group other than JCVI members.
40 . I turn now to Ms Branigan's request to have identified the organisations represented at this meeting. Having already acknowledged that there is a legitimate public interest in this area, I cannot see that to release the names of those organisations could harm either national defence or security. Indeed, I think that such a disclosure would have a positive effect in reassuring the public that the decision as to which strain of smallpox vaccine to purchase had been taken by those clearly best qualified to do so. I do not, therefore, find that Exemption 1(a) can be successfully applied. Exemption 2, the other exemption cited by DoH (paragraph 18), is designed to protect the deliberative process rather than the identities of organisations engaged in it. I do not, therefore, find Exemption 2 to be applicable to this information.
41 . I extend this rationale to Ms Branigan's request relating to any interests declared by those present at the meeting. I can see no reason why the disclosure of this information would harm either national security or defence, as required by Exemption 1(a); neither can I see any reason why the information requested would fall to be protected from disclosure under the provisions of Exemption 2 as this is clearly quite separate from the decision-making process that this exemption is designed to protect. Moreover, I believe that the public interest in good governance and the avoidance of suspicion of improper influence in the decision-making process requires that, other than in exceptional circumstances, information of this type should be disclosed. As it happens, it is clear from information provided by DoH that no interests were in fact disclosed at the meeting on 30 November so, in practical terms, the issue does not arise. Had they been, however, I would not have been able to find either of the exemptions cited by DoH to be applicable.
42 . I turn next to Ms Branigan's request that DoH provide her with copies of the minutes of the meeting and copies of any background factual scientific papers compiled during the meeting which analyse the efficacy and experience of using each of the different strains of the smallpox vaccine. I note that the minutes consist not only of the usual formal record of the discussion but also of a one page summary headed 'Main Points'. In providing his comments on the complaint the Permanent Secretary said that, although the minutes of the meeting had not been circulated to those present, they had been confirmed by the Chairman of the sub-group as a correct record of the discussions held and the advice given. In considering the question of whether or not the minutes should now be disclosed, it ought to be noted that the NAO report already details the main recommendations reached by the sub-group and that these recommendations are also summarised in the two submissions scrutinised by the Permanent Secretary and covered by Ms Branigan's earlier request (paragraphs 29 to 31). I have no difficulty in accepting the argument that those experts who offered opinions and made recommendations at this meeting did so on the understanding that their contributions would not be made public in any attributable form. I have no difficulty in accepting either that the detailed minutes contain information the release of which could be seen to be potentially harmful to our national security or defence. I accept, therefore, that the information contained within the minutes is, in principle and in practice, covered by both Exemptions 1(a) and 2. However, I see no reason why the document entitled 'Main Points' (with the removal of the name of one individual) could not be released. These main points form no more than an account of the main conclusions reached by the sub-group, are reflected within the NAO report, and do not contain any information the release of which could fall within the scope of either of the exemptions cited by DoH. I therefore recommend that this information be released to Ms Branigan.
43 . Finally, I turn to Ms Branigan's request that DoH provide her with copies of the background scientific papers compiled during the meeting which analyse the efficacy and experience of using each of the different strains of the smallpox vaccine. In providing his comments on the complaint, the Permanent Secretary did not enclose any background papers relevant to this part of Ms Branigan's information request. I can only assume that no such factual papers were compiled during the JCVI sub- group meeting.
The draft report
(i) In relation to Ms Branigan's requests of 29 April 2002, I recommended that all the information requested be disclosed with the exception of the information contained within the submission of 18 February 2002 that was protected by Exemption 13. This included all of the information contained in the table listed as an annex to that document, and information within the body of the submission listing details of the competitive position of the shortlisted companies. In addition, in respect of the submissions of 18 February 2002 and 5 March 2002, I recommended that the names on the circulation list should be redacted before disclosure.
(ii) In respect of the information requested by Ms Branigan on 30 April 2002, I recommended that all of it should now be disclosed.
(iii) Finally, in respect of the information sought by Ms Branigan in her request of 29 May 2002, I recommended that DoH now release to her the name of the third JCVI member present at the 30 November 2001 meeting of the sub-group, together with a list of the organisations there represented. I also recommended the release of that part of the minutes of the meeting of the sub-group which comprised the summary document headed 'Main Points'.
45. In reply, the Permanent Secretary said that he accepted that the placing of information in the public domain through the publication of the NAO Report had now altered the position in respect of the provision of information to Ms Branigan. However, at the time of the letting of the smallpox vaccine contract to Powderject, it needed to be emphasised that the Government had decided to use the special exemptions available under the EU procurement regulations that related to the protection of national security interests. This decision reflected the Government's concerns at that time about bioterrorism threats and the need not to expose any vulnerabilities in UK strategy that might be useful for potential terrorists. The Permanent Secretary said that releasing information then to the public about our state of preparedness and how much vaccine stocks DoH held, matters covered by the two submissions, would have undermined the use of those special exemptions. The Permanent Secretary said that DoH's response to Ms Branigan's requests was taken in the light of those circumstances. He added that, by the time the NAO had reported, the Powderject contract had not only been let but had been fulfilled and DoH's preparedness to deal with bioterrorist threats greatly strengthened. This had enabled a much more open policy to be pursued without compromising national security and this had been reflected in the subsequent open tender exercise undertaken for the award of the second smallpox vaccine contract.
46 . In respect of the recommendations contained within the draft report, the Permanent Secretary said that he accepted those in respect of the release of information that was largely now in the public domain through the NAO report. However, the Permanent Secretary made a number of points about other recommendations contained within the draft report. He said that, with regard to the recommendation to release the names of the organisations to which members of the JCVI sub-group belonged, it should be borne in mind that this information could be misleading to the public as those individuals were present as independent experts in their own right and were being asked for their personal scientific opinions, not those of the organisations that they represented. In many cases the opinions expressed would have coincided with those of the organisations, but this was not necessarily the case. He said that to reveal the identity of these organisations could potentially cause embarrassment to both the individuals and the organisations themselves, which could in turn prevent people coming forward in the future; this would have a detrimental effect upon the frankness and candour of future discussions and policy development.
47 . The Permanent Secretary said that he was unaware of the two names of the JCVI members being released to the public (paragraph 38). He conceded that the name of the Chairman had been made public but said that, in his opinion, the arguments applying to the naming of the two other individuals were similar to those in respect of non-JCVI members. He noted that the draft report had not recommended disclosure of their names. The Permanent Secretary also said that the submission of 18 February 2002, recommended for disclosure, still contained sensitive and commercial information and he asked for this to be excised from the document before it was released to Ms Branigan.
48. The Permanent Secretary said, in respect of the comments contained within the draft report about the manner in which DoH had handled Ms Branigan's information requests, that DoH would review their instructions to officials to require them to notify the Open Government Unit of any request for information that either cited the Code or mentioned 'Open Government'. They would promote the amended instructions through an awareness campaign, to begin immediately through the use of internal departmental bulletins. Open Government would also be added as a topic to DoH's continuing awareness programme for Freedom of Information. The Permanent Secretary said that he had also asked DoH's Open Government Unit to advise him if any requests appeared to be taking longer than necessary.
50. I then asked the Permanent Secretary to re- consider his decision not to release the names of the organisations to which members of the JCVI sub-group belonged. I pointed out to the Permanent Secretary that paragraph 0.3 of the Guidance on Interpretation of the Code made it clear that embarrassment, by itself, should not be a factor taken into account in deciding whether or not information should be released (see paragraph 46). I said that I did not in any event see embarrassment as a factor in this case: I was not recommending the release of the identities of those non-JCVI members present in their capacity of expert. However, I could not see that to release the names of those organisations, to which the members of the sub-group belonged could have anything other than a positive effect in reassuring the public that the decision about which strain of vaccine to purchase had been taken by those best qualified to do so.
51. I also addressed the comments made by the Permanent Secretary about the release of the names of JCVI members present at the meeting of the sub-group. I drew the Permanent Secretary's attention to an article, written by Ms Branigan and appearing in the 'Guardian' of 7 August 2002, which stated that:
They (DoH officials) would not disclose which experts sat on the sub-group of the JCVI, let alone what they discussed. They revealed only that Michael Langman, the chairman of the JCVI, headed the meeting and that it included another JCVI member, Barbara Bannister, an infectious diseases physician at the Royal Free Hospital."
I said that, as it appeared that DoH had already released the identities of two of the three JCVI members present, I could see no justification for withholding the identity of the third. I asked the Permanent Secretary to confirm that this information would now be made available to Ms Branigan.
52. Finally, in relation to Ms Branigan's requests of 29 April 2002, I asked the Permanent Secretary to confirm that he accepted the recommendations regarding the release of the tender document (paragraph 28) and the submission of 5 March 2002 (paragraph 31) to which he had made no specific reference in his response. Likewise, in relation to the requests of 29 May 2002, I asked the Permanent Secretary to confirm that he accepted the recommendations regarding the declarations of interests (paragraph 41) and that part of the minutes of the meeting headed 'Main Points' (paragraph 42) to which, again, his response had made no reference.
53. In reply, the Permanent Secretary enclosed a copy of the submission dated 18 February 2002 with the requested additional sections he wished excised clearly marked. The Permanent Secretary said that, as far as Ms Branigan's requests of 30 April 2002 were concerned, DoH's response to those requests had been based wholly upon the central guidance issued in respect of the round robin letter that had been sent to 17 Government Departments. DoH had acted in good faith upon the central advice given in relation to the answer provided. The Permanent Secretary did not, therefore, think it appropriate for him to comment as to whether that advice was appropriate, as that would be a matter for those who had provided it. The Permanent Secretary did, however, add that answers provided in the House of Commons had confirmed that Ministers had had no contact with Powderject or their representatives, either in writing or through meetings.
54. In respect of the release of the names of the employing organisations of the experts who formed the JCVI sub-group, the Permanent Secretary said that the argument did not turn on his use of the word embarrassment per se but upon the context and nature of such embarrassment. The Permanent Secretary said that he had clearly stated that it was the potential conflict between the views held by the employing organisations, and those expressed by the individuals as experts in their own right, that might lead to real difficulty and set out again the arguments from his earlier letter (see paragraph 46). The Permanent Secretary said that he remained of the opinion that that the non-disclosure of this information fell within Exemption 2 of the Code. In considering again the release of the names of the JCVI members present at the meeting of the sub-group, the Permanent Secretary said that DoH officials had only disclosed the identity of the Chairman of the JCVI and the fact that the sub-group also included those JCVI members with relevant experience. The Permanent Secretary maintained that it was Ms Branigan herself who had reached the conclusion (correctly as it turned out) that Barbara Bannister had been present at the meeting, and he referred back again to the arguments set out in his previous letter (see paragraph 47).
55. Finally, the Permanent Secretary addressed one (though not all) of the points I had raised concerning Ms Branigan's requests of 29 May 2002. He said that the document referred to as the 'Main Points' was in practice covered by a confidentiality agreement between the parties, and that to release the actual document would require the specific permission of the individual companies. The Permanent Secretary said that it was agreed that, as the key information within the document had already been put into the public domain through the NAO report, that the same information could now be revealed to Ms Branigan. He said, however, that it was his view that the document itself should not be released.
- In respect of the letter of 29 April 2002, DoH have given no clear indication as to whether or not they are willing to release the submission dated 5 March 2002 or whether or not they are willing to release the document containing the procurement criteria;
- In respect of the letter of 30 April 2002, DoH have refused to directly address the matter of the information sought by Ms Branigan even though the request relates to information they hold;
- In respect of the letter of 29 May 2002, DoH: have continued to refuse to confirm the identities of the second and third members of the JCVI sub-group even though the identity of the second member is already in the public domain ; have refused to release the names of the organisations to whom the other members of the sub-group belonged, and have apparently refused to release the information contained in the document headed 'Main Points', which summarises that meeting.
57. This is a matter of great concern. I am deeply disappointed by the manner in which DoH have handled Mis T's initial information requests. I am equally disappointed by the way in which they have refused to engage effectively with my own subsequent investigation. Both have been beset with delays and by a basic lack of understanding of the Code that does not augur well for the treatment of similar complaints under the forthcoming Freedom of Information legislation. I regret that DoH continue to refuse to release information for which, in my opinion, they have provided no adequate justification under the Code.
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