91Èȱ¬

The Department of Health has been forced to reveal today that it spent £239 million on swine flu vaccine.

Ìý

This information has been made public as a result of a freedom of information request by the 91Èȱ¬ and an appeal to the information commissioner.

The Department of Health refused to give the information to the 91Èȱ¬ when my colleague Julia Ross asked for this data in February last year. The department rejected the FOI application on the grounds that it would breach commercial confidentiality.

We then appealed to the information commissioner, who last month that the total sum paid on obtaining doses of swine flu vaccine should be disclosed.

The commissioner however ruled against the publication of a more detailed breakdown of this spending which we had also asked for.

The department has today complied with this decision and issued an overall figure. It has revealed that it had paid two drug companies £239 million for vaccine doses until the end of deliveries in April 2010. These supplies were for the anticipated swine flu pandemic which failed to materialise.

Most of the money was paid to GlaxoSmithKline (GSK) for its Pandemrix vaccine, and the remainder to Baxter Healthcare for Celvapan.

The department was left with many unused doses, although some have been used this flu season after stocks of the latest seasonal flu jab proved insufficient.

This case illustrates the limits of commercial confidentiality under FOI. It shows how claims sometimes made by public authorities about possible damage to commercial interests are not necessarily strong enough grounds for refusing freedom of information requests.

• Bookmark with:
• |
• |
• - What's this?

Today was to have seen a Supreme Court hearing - and thus possibly the final stage - in the most long-running legal dispute involving freedom of information since the law came into force.

Ìý

However that case will not be happening this Wednesday, following the death last month of the man who initiated it and has been fighting it for several years, a London solicitor named Steven Sugar.

The dispute also involves the 91Èȱ¬. On 8 January 2005, a few days after the right to make FOI requests became active, Mr Sugar asked the 91Èȱ¬ for a copy of the Balen Report, an internal report assessing the corporation's coverage of the Middle East which had been compiled in 2004 by an editorial adviser, Malcolm Balen.

The 91Èȱ¬ is only partly covered by the Freedom of Information Act. According to , the organisation is only subject to FOI "in respect of information held for purposes other than those of journalism, art or literature". The corporation argues this exception is needed to protect the editorial independence of programme-makers.

Mr Sugar's request was rejected by the 91Èȱ¬ on the grounds that the Balen Report constituted journalistic information. After he then appealed to the information commissioner, the case become embroiled in a over legal technicalities and the extent of the [156KB PDF] right to intervene when the commissioner has discarded a complaint as outside the scope of the FOI Act. This process, which I wrote about on various occasions, went all the way to the in 2009.

After that was settled the dispute moved on to other, less procedural matters. These haven't actually focused on the principle of whether disclosing the report would threaten journalistic freedom or be in the public interest, but they have been about how far the 91Èȱ¬ is affected by FOI law.

The key legal argument has revolved around information held by the 91Èȱ¬ for more than one reason, both for journalistic and for other purposes - when and how is that covered by FOI? Following the tribunal's earlier verdict that the Balen Report had become predominantly a matter of strategic policy and resource allocation rather than journalism, this question has been working its way through the legal system.

The current legal position, as expressed by the and upheld by the , is that "the 91Èȱ¬ has no obligation to disclose information which they hold to any significant extent for the purposes of journalism, art or literature, whether or not the information is also held for other purposes".

On this basis the courts ruled that the 91Èȱ¬ was entitled not to release the Balen Report. Mr Sugar's appeal against this was the case due to be heard today at the Supreme Court.

This leaves the 91Èȱ¬ in the position of being able to turn down any FOI request for material which is kept, even if only partly, for programme-making or editorial purposes. This is also the principle employed by the information commissioner when considering complaints about the 91Èȱ¬.

The corporation often receives FOI applications for information held for multiple reasons (eg financial management or governance, as well as programme-making). [52KB PDF] has a backlog of several cases involving the 91Èȱ¬ which had been stayed pending the outcome of the expected Supreme Court hearing.

However the extensive and convoluted legal battles over the Balen Report have not yet come to an end. It may be possible for someone else to pursue the appeal on Mr Sugar's behalf.

So this particular FOI dispute, and also the more general question of the extent of the 91Èȱ¬'s obligations under the Act, are yet to be finally determined.

The Supreme Court says that it has now listed the case provisionally for another hearing in the autumn. It seems unlikely that a judgment would then be handed down before 2012, over seven years after Mr Sugar's initial request.

• Bookmark with:
• |
• |
• - What's this?

According to the Communities and Local Government department, there are eight councils in England which have not yet complied with the ministerial demand that they publish details of all items of spending over £500. However one of these authorities claims that CLG is wrong and it has issued the information.

The CLG website contains a . For some reason the website doesn't actually identify the few which haven't - but the department says they are Nottingham, Bradford, Peterborough, Epsom and Ewell, Hyndburn, Nuneaton and Bedworth, Eastbourne and Lincolnshire.

This is not so much naming and shaming, as shaming by not naming.

The 91Èȱ¬ has contacted the eight councils involved. Nuneaton and Bedworth maintains the for about three weeks.

Bradford, Hyndburn and Peterborough say they will publish it during this week. Eastbourne, Epsom and Ewell, and Lincolnshire say they will do so by the end of February.

If this happens that will leave Nottingham as the only local authority determined to resist the government's request. The council's deputy leader Graham Chapman said:

"We have said that we will publish accounts over £500 if it becomes a legal requirement to do so. We are happy for information to be transparently available for public scrutiny but feel that the time and money needed to implement this change is wasteful and a distraction at a time when we are coping with £60million of cuts in government funding. The government talks about localism but as this issue shows, it seems intent on interfering at every opportunity."

If Nottingham is the only council maintaining this stance, it will be interesting to see how it withstands the pressure and inevitable accusations of secrecy.

The CLG statement was released as part of the next stage in the local transparency drive being pursued by the Communities Secretary, Eric Pickles.

He has today on a new code of practice on local authority data. Councils could now be asked to issue an organisational chart with the names and responsibilities of staff paid over £58,200, which is equivalent to the lowest pay band for senior civil servants.

The draft code also refers to releasing datasets on contracts, councillor expenses, voluntary sector grants and the democratic running of the council.

Some local authorities will be happy to follow this agenda, but there are others who will not be pleased by some of those proposals.

Several councils have already made it clear that they regarded the publication of the spending data over £500 as a bureaucratic exercise with little practical benefit, and they may well be unenthusiastic about these further demands.

This unease featured in an earlier CLG consultation which asked councils for details of what they considered to be unnecessary administrative burdens. Under freedom of information the 91Èȱ¬ has obtained from CLG a copy of the summary of responses [68KB PDF].

This report identifies 13 councils with concerns about issuing the spending data. It also names 49 councils who complained about the level or nature of enquiries stemming from the Freedom of Information Act. (The document gives a figure of 52, but this is an error due to double-counting).

However by far the most common protest from authorities was about the data they have to provide to central government, and how they are audited and inspected. There were 152 councils with objections to the monitoring requirements they are subject to.

Some councils however apparently had more unusual complaints about the administrative burdens imposed on them. These included bonfire regulations (raised by East Devon), the out-of-hours stray dog service (Harborough), and the requirement to have four-year election periods (Gravesham).

• Bookmark with:
• |
• |
• - What's this?

Earlier this week the that hospitals often pay more than necessary when purchasing supplies. It drew attention to different procurement methods in different parts of the NHS.

This raises the question of the role of transparency and freedom of information in ensuring the public sector gets value for money in what it buys from private companies.

The NAO report is certainly a more substantial piece of work than the , who last year conducted an efficiency review of procurement in central government.

Sir Philip's conclusions have themselves been the subject of an interesting FOI request from the , who wanted to know more about the basis for some of the which he referred to.

The government refused to release the details on the grounds of commercial confidentiality, and the magazine has now appealed to the Information Commissioner.

We've also tried to use FOI to shed more light on the efficiency or otherwise of public procurement, a process which often raises these tricky issues of commercial confidentiality.

By the way, I should state that naturally I'm aware that the 91Èȱ¬ itself sometimes rejects FOI applications on the basis of commercial confidentiality. Judging by previous experience a few of you may wish to make this point in the comments, which of course is fine. But please note this point: how the 91Èȱ¬ handles incoming FOI requests does not and should not constrain the 91Èȱ¬'s journalism.

A 91Èȱ¬ investigation a year ago based on FOI revealed how local councils paid widely varying prices for road salt, in a market dominated by just two suppliers. What was also very interesting was that we found major differences in councils' attitudes to openness, ranging from some who were immediately happy to provide full details of amounts purchased, supplier and price, to others who would not supply any of this data.

More recently Francis Maude, the minister leading the government's transparency agenda, that the coalition had already saved several 100 million pounds by renegotiating contracts with large suppliers.

My colleague Julia Ross asked the Cabinet Office to break this down by supplier, so that we could examine and report on the exact nature and extent of the savings obtained. The government confirmed they held the information, but this week declined to reveal it.

They argued that it would harm commercial confidentiality and also damage relationships with suppliers. The minister who gave his formal opinion that disclosure would prejudice the effective conduct of public affairs was the Minister for the Cabinet Office, .

In another case we asked the Department for Health last year how much they spent on buying swine flu vaccine for the predicted pandemic, which they refused to say.

Last month in an important decision the that the DH should reveal the sums paid to GSK and Baxter Healthcare, although not the quantities of vaccine involved nor the pricing.

At this stage we don't yet know whether the department will supply us with the data or appeal the decision to the tribunal and leave the issue unresolved for longer.

• Bookmark with:
• |
• |
• - What's this?