The First-Tier Tribunal has today handed down two important decisions in appeals concerning requests for disclosure of information relating to the Government’s controversial policy to radically overhaul the NHS: Department of Health v IC & John Healey MP (EA/2011/0287) and Department of Health v IC & Cecil (EA/2011/0286). Healey concerned a request for disclosure of a ‘transition risk register’ (TRR), essentially a set of risk assessments relating to the transition from the NHS as it was in 2010 to the NHS as it is proposed it should be once the reforms set out in the July 2010 White Paper have been implemented. Cecil concerned a request for disclosure of the ‘strategic risk register’ (SRR). The SRR contains the risk assessments for the NHS as a whole on a strategic and ongoing basis. In both cases, the DOH refused disclosure on the ground that disclosure of the registers would have a ‘chilling effect’ on the development of government policy and, accordingly, were exempt from disclosure under s. 35(1)(a) FOI (a.k.a. ‘the safe space’ exemption). The IC found that, whilst s. 35(1)(a) was engaged in respect of the registers, the public interest balance tipped in favour of their disclosure. Interestingly, the Tribunal dismissed the DOH’s appeal in respect of the TPRR but allowed it in respect of the SRR. The written reasons, which have yet to be promulgated, are no doubt going to make for interesting reading; so watch this space.

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