This briefing for MPs and the media was prepared for the second reading of the Freedom of Information Bill in the House of Commons on 7 December 1999.
This briefing for MPs and the media was prepared for the second reading of the Freedom of Information Bill in the House of Commons on 7 December 1999.
Briefing note on local government openness, and the effects of the proposed draft Local Government (Organisation & Standards) Bill and draft Freedom of Information Bill.
QUEEN’S SPEECH BRIEFING
23 November 1999
Following the reports of two select committees, the government has made a number of improvements to the draft Freedom of Information (FOI) Bill. However, the bill still suffers from several substantial defects.
This briefing deals with two main concerns:
1. The existence of ‘class exemptions’ which protect all information falling within particular classes, regardless of whether disclosure would cause harm
2. The fact that ministers and authorities – not the Information Commissioner – have the final word on whether information should be disclosed in the public interest
This briefing gives a clause by clause explanation of the private peer’s FOI bill, introduced by the Conservative peer Lord Lucas, which received a second reading in the House of Lords on 10 February 1999. The bill, which was drafted by the Campaign, is largely the same as the 10-minute rule bill introduced by Labour MP Andrew Mackinlay in November 1998. The Bill itself can be read on the Stationery Office website.
This briefing was produced for MPs and the media for a debate on Freedom of Information held in the House of Commons on 6 July 1998. It expresses concern at reports that some of the white paper proposals – which the Campaign had warmly welcomed – were the subject of considerable opposition from within government.
We have been surprised to see from a number of recent press reports that some of the white paper’s fundamental commitments are apparently being challenged by senior ministers and officials. If true, this would be a matter of grave concern.
In particular, it has been suggested that a Freedom of Information (FOI) Bill may not be included in the next Queen’s Speech and that efforts have been made to substantially weaken the powers of the Information Commissioner, who will enforce the proposed legislation.
It is difficult to believe that the FOI proposals could be challenged in such a fundamental way. The white paper, introduced by an emphatic preface from the Prime Minister, was the collective decision of government, approved by cabinet after extensive consideration by a high level ministerial committee. Dr David Clark MP, the Chancellor of the Duchy of Lancaster, stated that it “has the complete and utter endorsement of the Government as a whole….It is the centre of the government’s approach to constitutional reform”. Labour’s promises on this issue, which are described in the enclosed document (‘Labour Commitments to Freedom of Information’) have repeatedly been reaffirmed over the past 25 years. It should be unthinkable for anyone to contemplate delaying or weakening such a long-standing and repeatedly reaffirmed pledge, not least because of the widespread cynicism that any such move would engender.
At the Campaign for Freedom of Information’s annual Awards in March 1996, Tony Blair made it clear that freedom of information was “not some isolated constitutional reform” but “a change that is absolutely fundamental to how we see politics developing in this country”. He added:
“I don’t believe that [an FOI Act’s] impact would simply be in the pure matter of legislation…It would also signal a culture change that would make a dramatic difference to the way that Britain is governed. The very fact of its introduction will signal a new relationship between government and people: a relationship which sees the public as legitimate stakeholders in the running of the country and sees election to serve the public as being given on trust…
I regard it not merely as simply a list of commitments that we give because at some point in time, someone got up and agitated for it…It is genuinely about changing the relationship in politics today.
There is so much disaffection from politics, so much disillusion with it, and one of…the reasons is that we live in a modern and a far better educated and far more open and far more assertive democracy and country and it’s good that people feel in that way. The irony is that the system of government is about fifty, sixty, seventy years behind the actual feelings and sentiments of the broad majority of people. A Freedom of Information Act is not just important in itself. It is part of bringing our politics up to date, of letting politics catch up with the aspirations of people and delivering not just more open but more effective and efficient government for the future.”
A stronger case for early legislation could hardly be made.
The role of the Information Commissioner
The white paper proposed that the FOI Act would be enforced by a new Information Commissioner with the powers order public authorities to disclose information. His decisions would be challengeable by judicial review, but could not be appealed against on their merits. The white paper explained:
“We have decided to take this approach because we believe it to be in the best interests of the FOI applicant. Overseas experience shows that where appeals are allowed to the courts, a public authority which is reluctant to disclose information will often seek leave to appeal simply to delay the implementation of a decision. The cost of making an appeal to the courts would also favour the public authority over the individual applicant”.
We welcome this approach. It would provide the ordinary citizen with a remedy which carries the the power of a court to order disclosure but without the prohibitive costs. Some press reports suggest that there has been discussion of the possibility of permitting the Commissioner to question a department’s decision on judicial review grounds only. Any such move would leave the Commissioner virtually powerless in most cases. Subsequent press reports suggest that this proposal has been rejected, and that the Commissioner’s powers will remain as set out in the white paper. Instead, a new Tribunal will be established to hear appeals against the Commissioner’s orders.
We hope the debate will clarify whether this is in fact the case and, if so, how any Tribunal will be constituted and on what grounds appeals to it can be made. The implications are:
* if public authorities can challenge the Commissioner’s decisions on their merits (and not just on judicial review grounds) there are likely to be more appeals, leading to greater delays in releasing information, especially in contentious cases. The Tribunal’s decisions themselves will inevitably be challengeable in court, adding further to the potential delay;
* companies seeking to block the disclosure of information about their safety and environmental record or consumer products, would also have these additional grounds on which to challenge disclosure decisions;
* parties before the Tribunal are likely to be legally represented, adding to the costs of the appeals mechanism, and favouring government and business in relation to the ordinary individual.
The readiness of some departments to obstruct disclosure should not be underestimated. Reporting on his experience with complaints under the Open Government code of practice, introduced in 1994, the former Ombudsman, Sir William Reid reported:
“there is a tendency in some departments to use every argument that can be mounted, whether legally-based, Code-based or at times simply obstructive, to help justify a past decision that a particular document or piece of information should not be released instead of reappraising the matter in the light of the Code with an open mind. I have found it time-consuming to have to consider a whole series of different defences, even when many of them prove to have no real foundation.”
The new government has adopted a more liberal approach to disclosure under the code. Despite this, problems have continued. The present Ombudsman, Mr Michael Buckley has said that some departments engage in a:
“process of haggling…about the interpretation, whether or not the Code applies…”
“…there are one or two Permanent Secretaries who are in no doubt that we think they and their departments are really just looking for reasons, clutching at straws one might almost say, to avoid the release of information.”
“[they] dispute my interpretation of the Code and the exemptions under it; or dispute my judgment regarding the ‘harm’ test”
“[some departments] adopt a ‘scatter-gun’ approach and pepper their response with a range of Code exemptions many of which are of no relevance to the case”
The solution to such problems should be a Commissioner with strong powers to order disclosure, and measures to minimise any bias against the citizen – for example in terms of cost or delay – from any subsequent right of appeal.
We are concerned at the proposal to exclude a number of bodies and functions from the scope of the Act. The most serious of the proposed exclusions relate to the law enforcement functions of the police, police authorities and government departments such as the Immigration Service. Others include (a) the Security and Intelligence Services (b) the prosecution functions of the Crown Prosecution Service (c) personnel records (d) and legal advice.
* mean that no information about the body or function will be available even if disclosure would cause no harm at all. No overseas freedom of information law adopts this approach in relation to the police or immigration authorities. Information is always available, unless disclosure is shown to be potentially harmful.
* mean that even where there is an overriding public interest, because of serious misconduct, information cannot be obtained. There are currently a wide range of concerns about the police, for example, relating to their handling of the investigation into the Lawrence murder, the spraying of a pensioner in his car with CS gas, and the Metropolitan Police Commissioner’s acknowledgement that a minority of officers are in his words “corrupt, dishonest, unethical”. However, grave the misconduct, the the proposed Act will provide no access to information about such matters.
* involve removing some existing rights introduced by the former government, for example to immigration information, which has been available under the Open Government code of practice; * are inconsistent with the white paper’s stated intention of ensuring that decisions are based on the contents of the individual record, and not the class into which it falls; * may lead to suspicion about the bodies involved, who – unlike the rest of the public sector – will be permitted to keep information secret even where they cannot demonstrate that disclosure would be harmful. This may weaken public confidence in their work.
Further details are given on pages 4-10 of the Campaign’s response to the white paper, and paras 23-39 of the Public Administration Committee report.
The privatised utilities
The white paper proposed that the privatised utilities would be subject to the FOI Act in their own right. However, according to press reports, the utilities are to be dropped from the Act’s scope. Instead, only a limited degree of access – to information which they hold in relation to their statutory functions – will be possible.
The original proposal would provide a welcome response to the widespread concern at the loss of accountability resulting from privatisation of publicly owned utilities. The absence of competition and consumer choice in these essential industries coupled with the complex regulatory structures to which they are subject distinguishes them from conventional private sector bodies. The Public Administration Committee proposed that the Bill should apply “to companies which are monopoly, dominant, or franchised suppliers in one of the regulated ‘utility’ markets” but this proposal appears to have been rejected.
There is widespread support for including the utilities in an FOI Act:
“It is only possible to identify whether regulators are fulfilling their duties if the inter-relationships between the regulated and non-regulated activities of the relevant companies are transparent. Restricting Freedom of Information requirements to the regulated functions of the utility companies will mean consumers cannot access information crucial to interpreting information about core functions. For example, it would be difficult to establish whether cross subsidies were taking place between the different activities through mechanisms such as transfer pricing.” (Sheila McKechnie, Director, Consumers’ Association)
“The privatised utilities – water and electricity for instance – are special and as such have a greater onus to be open about their activities….the services they are providing are essential, they are still broadly monopolies, and should be available to consumers on fair terms. As long as there is no effective competition and the industries continue to be regulated, their regulated activities should be open to scrutiny….the regulatory process itself needs to be more open so that interested parties can contribute effectively to the process and challenge information and assumptions.” (National Consumer Council)
“The privatised utilities are providing essential public services and are natural monopolies. There is an overriding case for openness, especially in areas such as disconnections, debt recovery strategy, the way in which prices are set, and their general approach towards the community and their employees.” (Michael Jeram, Head of Energy, UNISON)
We also have a number of other concerns, that:
* charges should not become a deterrent to reasonable requests (see pages 36-42 of the Campaign’s Response)
* people should be able to discover what kinds of information authorities hold (pages 45-46)
* there should be some sanction for authorities which deliberately destroy records in order to prevent their disclosure (pages 49-50).
Campaign for Freedom of Information, July 3, 1998
1. Speech at conference ‘Freedom of Information is Coming’ organised by the Campaign for Freedom of Information, Church House, London SW1, 2.2.98
2. Your Right to Know, paras 5.10-5.19
3. Para 5.16
4. Parliamentary Commissioner for Administration, Annual Report for 1995, page 51
5. Oral Evidence to the Public Administration Committee, 2/12/97, Q.34
6. Oral Evidence to the Public Administration Committee, 2/12/97, Q.19
7. Written Evidence to the Public Administration Committee, January 1998
8. Parliamentary Ombudsman, Annual Report, 1997-98, para 6.13
9. Evidence to the Home Affairs Select Committee, December 1997
10. See page 5 of the Campaign’s ‘Response to the Freedom of Information White Paper‘
11. Para 3.8
12. ‘Information bill faces revision’, Financial Times, 20-21.6.98
13. Paragraph 44
A series of amendments to the Data Protection Bill were drafted by the Campaign for Freedom of Information and tabled by Richard Shepherd MP at the bill’s report stage in the House of Commons on 2 July 1998. The amendments (which appeared as numbers 15-17 on the order paper) were all debated, but none of them was passed. This briefing explains their purpose.
The amendments reflect concern about a new prohibition on the release of information in clause 59 of the Bill. This will make it an offence for the Data Protection Commissioner (as the present Data Protection Registrar will be known) or her staff to disclose information about any identifiable business or individual, other than in very limited circumstances. The offence would be committed even if the disclosure caused no harm, for example, to commercial confidentiality. No such offence exists under the current Data Protection Act.
The clause is likely to prevent the Commissioner from publicly identifying business which have been found to be misusing personal data about individuals, for example, by obtaining data through deception or selling private information for commercial purposes. The Commissioner may be unable to reveal that:
she has received large numbers of complaints about a particular company
a company has failed to respond to requests to improve its practices
an enforcement notice has been served against a firm
Equally, it may be an offence to reveal that:
a business has agreed to correct a problem without formal action
a complaint had proved unfounded.
The Registrar has herself expressed concern at this new provision, which she says may “require her and her staff to be unnecessarily guarded in future“.1 The result may be both to deny the public information which it ought to have, and to undermine public confidence in the Commissioner’s work by preventing her for explaining what action she has taken to deal with complaints relating to matters of public concern.
The offence is not limited to disclosures likely to cause actual harm, but will be caused by any disclosure of any information about an identifiable business. This :
* contradicts the policy established by the last government. Its 1993 Open Government white paper provided that in any new offences involving the disclosure of information “the presumption will be in favour of the inclusion of a harm test“.2
* is also inconsistent with the present government’s proposals for a Freedom of Information (FOI) Act. The FOI white paper proposes that information should only be withheld where disclosure would cause either “harm” or “substantial harm” to specified interests. Existing statutory restrictions on disclosure are being reviewed with a view to repealing or amending those which do not reflect the proposed harm tests.3
During the Data Protection Bill’s Committee stage in the House of Commons, an amendment was tabled by Mr John Greenway to restrict the offence to information which “is potentially damaging”. This was not accepted by the Government.4
The Government says that the new offence is required by the European Data Protection Directive, which states that national supervisory authorities must be subject to “a duty of professional secrecy”. However:
* the Registrar’s view, as expressed this January, is that this obligation can be met without a new criminal offence.
* The Directive itself contains a number of pro-disclosure provisions would permit a far more balanced approach. These include Recital 72, which states: “this Directive allows the principle of public access to official documents to be taken into account when implementing the principles set out in this Directive” and Recital 63 which states that supervisory authorities “must help to ensure transparency of processing“.
The Government maintains that the restriction is not as serious as it appears because the Commissioner has a discretion to release information under Clause 51(2). This states:
“The Commissioner shall arrange for the dissemination in such form and manner as he considers appropriate of such information as it may appear to him expedient to give to the public about the operation of this Act, about good practice, and about other matters within the scope of his functions under this Act…”
However, precedent under similar provisions suggests that this may be of limited value. For example, the Health and Safety Commission and Executive are prohibited from disclosing information unless it is for the purpose of their functions 5 but are also required to ensure that people concerned with matters relevant to the purposes of the Health and Safety at Work Act are “kept informed of, and adequately advised on” those matters.6 It interprets these two requirements restrictively, and says that it is prohibited from revealing information about individual premises unless to do so “would directly prevent risk…[or] is necessary to protect health and safety“.7 Requests for information about identifiable premises from people who are not themselves in danger – including Members of Parliament, researchers and journalists – are usually refused.
The explicit prohibition on releasing information about identifiable businesses is therefore likely to override the Commissioner’s general discretion to release information, unless under clause 59(2)(c), disclosure is “for the purposes of, and is necessary for, the discharge of…any functions under this Act“. It will be extremely difficult to demonstrate that a particular disclosure is necessary for any function under the Act. If the function can be discharged without the disclosure, the disclosure will not be necessary – and would be illegal.
Clause 59(2) also permits disclosure in certain other limited circumstances, for example, where the information is publicly available already; the individual or business concerned consents to the disclosure; or where disclosure is made in connection with legal proceedings. It also provides a limited, and highly restrictive, public interest defence.
The proposed amendments
The amendments would:
1. require the Commissioner to maintain a public register of enforcement notices. The disclosure of these notices might otherwise be an offence
2. permit (but not require) the Commissioner to reveal the results of an assessment of whether a particular business is complying with the Act. At present, this information can only be revealed to the person asking for the assessment. Its disclosure to an MP or journalist could be an offence
3. strengthen the public interest defence available to the Commissioner or her staff
Page 24, line 28, [Clause 40] at end insert:
‘(7A) The Commissioner shall maintain a register containing:
(a) a copy of every enforcement notice issued under this section;
(b) such other particulars relating to such notices as the Secretary of State may by order prescribe.
(7B) The provisions of sections 19(6) and (7) shall apply in relation to the register maintained under this section as they do in relation to the register maintained under section 19(1).’
Under clause 40(1) the Commissioner may serve an enforcement notice where it appears to her that a data controller is contravening any of the data protection principles.8 The notice may require the controller to take specified action or stop processing data.
The amendment would require a register of such notices to be set up (new subclause 7A). The register would have to be available to the public free of charge at all reasonable times Certified copies of entries from the register could be obtained on payment of any prescribed fee. This is done by new subclause 7B, which applies the existing provisions of clause 19(6) and (7) which relate to the main Data Protection Register, to this new register. Those provisions are as follows:
19 (6) The Commissioner –
(a) shall provide facilities for making the information contained in tthe entries in the register available for inspection (in visible and legible form) by members of the public at all reasonable hours and free of charge, and
(b) may provide such other facilities for making the information contained in those entries available to the public free of charge as he considers appropriate.
(7) The Commissioner shall, on payment of such fee, if any, as may be prescribed by fees regulations, supply any member of the public with a duly certified copy in writing of the particulars contained in any entry made in the register.
The amendment would bring the Data Protection Bill into line with existing legislation such as the Environment and Safety Information Act 1998 and the Environmental Protection Act 1990 9 which require the establishment of public registers of enforcement notices about environmental and safety hazards.
Subparagraph (b) of the amendment would allow the Secretary of State, by order, to require that other information relating to such notices be included on the register. This would allow the fact that a notice had been cancelled (under clause 41), or was the subject of an appeal (under clause 48) to also be recorded. It might also permit the person on whom the notice had been served to add a statement of explanation or mitigation to the register.
Page 41, line 4, [Clause 67], at end insert “section 40(7A)(b)”
The preceding amendment would create a new order making power. This will require a consequential amendment to clause 67, which deals with the procedures by which orders are to be introduced. The amendment indicates that this order would be made under the affirmative procedure.
Page 25, line 20 [clause 42] at end insert –
‘and may, if he considers it appropriate, inform any other person’
Under clause 42(1) a person who believes that he or she has been directly affected by any processing of personal data may ask the Commissioner for an assessment of whether the processing breaches the Act’s requirements. After carrying out the assessment the Commissioner must inform the applicant “to the extent that he considers appropriate…of any view formed or action taken as a result” [clause 42(4)(b)].
However, while the applicant must be informed of the outcome, the Commissioner may commit an offence under Clause 59 by revealing the same information to any other person. Thus, even though there may have been a well publicised complaint about a particular practice, the Commissioner may not tell anyone (including a journalist, MP or another potentially affected person) about her findings.
The amendment allows (but does not require) the Commissioner to make such disclosures. (However, a requirement may arise under the proposed Freedom of Information Act).
The discretion is appropriate in this case, since where a complaint relates purely to the circumstances of an individual applicant, wider disclosure may not be appropriate. However, where the issue is of general concern, and affects large numbers of people, disclosure may be justified – for example, if it reveals that a bank is failing to safeguard personal data about its customers.
(Note: There is no reason why the level of disclosure proposed in the amendment should be thought to contravene the “obligation of professional secrecy” required by the Directive, given that the Directive also provides that supervisory authorities “must help to ensure transparency of processing” [Recital 63])
Page 36, line 44 [Clause 59]
leave out “necessary for reasons of substantial” and insert “in the”
A public interest test is available, under clause 59(2)(e), should the Commissioner (or a member of her staff) be prosecuted for an offence relating to the disclosure of information. The test is particularly restrictive. Amendments 17 and 18 both seek to remove some of the restrictive features.
Clause 59(2)(e) provides that no offence is committed if:
“having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary for reasons of substantial public interest”
This means that it would have to be established that:
* the disclosure was “necessary”, not just desirable, in the public interest;
* the public interest related to the “rights and freedoms or legitimate interests” of others – a term which does not on the face of it acknowledge the public interest in the accountability of the Commissioner’s work; and
* the public interest itself would have to be “substantial”.
It is hard to see why this public interest test should be set out so strictly, particularly as most of the Bill’s other public interest tests are less demanding. For example, there is no requirement that the public interest be “substantial” before a newspaper can publish personal data, under the public interest test in clause 32(1)(b).
Amendment 17 would remove the requirement that the disclosure be “necessary” and that the public interest be “substantial”. The defence as amended would read:
“having regard to the rights and freedoms or legitimate interests of any person, the disclosure is in the public interest”
Page 36, line 44 [Clause 59]
leave out “substantial”
This is an alternative to Amendment 17. It would delete the word “substantial” but retain the word “necessary”. The amended provision would then read:
“having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary for reasons of public interest”
It is effectively identical to Amendment 46 tabled by the Home Secretary. Under the Home Secretary’s amendment the provision would read:
“having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest”
The word “necessary” would remain a problem under both Amendments 18 and 46. A disclosure which was only “desirable” in the public interest, but not “necessary” would not be permitted, under these amendments.
Campaign for Freedom of Information, July 2, 1998
1. Data Protection Registrar, ‘Data Protection Bill: Criminal Disclosures by the Commissioner’s Staff’, 29.1.98
2. Open Government, July 1993, Cm2290, para 8.40
3. Your Right to Know, December 1997, Cm 3818, para 3.20
4. Data Protection Bill, Standing Committee D, 10th sitting, 2 June 1998 (morning) cols 266-270
5. Health and Safety at Work Act 1974, sections 28(3)(b) and 28(7)(a)
6. Health and Safety at Work Act 1974, section 11(2)(b)
7. Health & Safety Executive, General Administrative Procedures, No. 1, August 1995, para 1.B11
8. Eg if personal data is being obtained unfairly or unlawfully, in contravention of the First Data Protection Principle
9. See section s20(1), 64(1) and 122(1) of the 1990 Act which require registers containing enforcement notices relating to premises subject to Integrated Pollution Control, waste disposal and genetically modified organisms.
The Campaign’s response, published in March 1998, to the government’s white paper on FoI. This detailed paper also incorporates the Campaign’s evidence to the House of Commons Public Administration Committee in January 1998.
NOTE: The Code of Practice on Access to Govenment Information was introduced by the Conservative Government in April 1994 as an alternative to a freedom of information act. The Code has now been superseded by the Freedom of Information Act 2000 which came fully into force on 1 January 2005. An archived version of the Code is available on the The National Archives website here.
Have you been dying to get your hands on previously secret official information?
If so, this could be the time to ask for it
The government is promising to release more information on request under a code of practice. The code contains a long list of exemptions, allowing broad classes of information to be withheld. But if you think these are being wrongly applied you can now appeal via an MP to the Parliamentary Ombudsman.
The Code of Practice on Access to Government Information, introduced by the then Minister of Science and Public Service, William Waldegrave, on April 4 1994 (and revised in January 1997) is a step in the right direction. The code itself only promises access to “information” not actual documents. However, the Ombudsman has said tht if someone asks for a document, he will regard that as a request for all the information in the document, and would expect the document to be released if it does not contain exempt information.
The Labour government is committed to introducing a Freedom of Information Act, which would replace the code. A draft bill is due to be published in May 1999, and the final legislation is unlikely to come into force before the middle of 2001 at the earliest. Until then the Code of Practice will remain in force. In the meantime, the government has told departments to apply the code more liberally so as “to disclose as much information as possible”.
The Campaign for Freedom of Information is encouraging people to use the code – both to benefit from any improvements it may bring and to reveal its shortcomings. We will be keen to hear of your practical experience with the code – positive and negative.
Under the code the government promises to release information on request. For simple requests the code says information will normally be provided within 20 working days of the request’s receipt. This period may be extended if significant work is required.
If you are not satisfied with the response you can appeal, first by asking the department itself to review its original decision. Afterwards you can ask an MP to forward your complaint to the Parliamentary Ombudsman. Complaints can be made about the withholding of information, about misleading replies and about unreasonable delays or charges.
The code offers a number of valuable benefits:
* The Ombudsman’s role under the code is a genuine advance which will create pressure for greater disclosure. The Ombudsman has the power to see any relevant government files (other than cabinet and cabinet committee papers) and has been given additional resources to investigate complaints under the code. It is clear that some information which has not been released in the past can be obtained under the code.
* Departments’ internal rules and manuals, containing guidance on their dealings with the public and businesses, will be published under the code [Paragraph 3(ii)]. This will help organisations which advise the public on their rights; individuals who feel they may not have been fairly treated by a department or agency; and anyone who wants to check how the government is applying the rules regulating companies and products.
* The code creates, for the first time, a general commitment to give people reasons for administrative decisions affecting them [Paragraph 3(iii)].
The code nevertheless suffers from serious defects:
* The code commits the government to supply “information”, not actual documents [Paragraph 4]. This implies that applicants will normally get a letter, summarising the information in departmental documents – not the documents themselves. However, this approach has been challenged by the Parliamentary Ombudsman. He has said that he will regard a request for a document as a request for all the information in it. He has suggested that the most practical way of doing this may sometimes be to release a copy of the actual document.
* While some of the exemptions are unobjectionable, many are far too wide and a few appear not to be justified at all. However, under the code the Ombudsman could in some cases recommend that exempt information be disclosed in the public interest.
* Fees can be charged for dealing with many kinds of requests. Some departments are proposing to charge potentially prohibitive fees.
* Some important parts of government are not covered by the code, which applies only to government departments and those other bodies subject to the Parliamentary Ombudsman’s jurisdiction. Since June 1995 NHS bodies, such as trusts, health authorities and GPs have had their own separate code. But bodies such as the police, the security services, the nationalised industries, the Monopolies and Mergers Commission, the National Curriculum Council and hundreds of other non-departmental public bodies are not subject to any code. The previous government originally suggested that local authorities would be covered by a separate code of their own, but no such code was produced and local authorities have been advised to introduce their own access policies.
[See: Open Government: A good practice note on access to information, published June 1995. Available from the Local Government Association, 26 Chapter Street, London SW1P 4ND]
* Applicants cannot contact the Ombudsman directly but must ask an MP to do so. The previous Ombudsman has said this requirement “serves to deprive members of the public of possible redress”. The requirement that departments must be asked to review any refusal themselves before an applicant can complain to the Ombudsman, may create delay.
* Because the code has no legal force it cannot override existing statutory restrictions on disclosure. There are some 250 of these.
* Ultimately the Ombudsman can only recommend, not compel, disclosure. Departments will prefer to comply, since failure to do so will lead to adverse publicity. So far no department has refused to comply. However, where the disclosure itself would be highly embarrassing, ministers may decide to ignore the Ombudsman’s recommendations.
The Campaign is urging people to use the code, and wherever appropriate, challenge any unjustified restrictions first by asking the department itself to review the decision and then by complaining, via an MP, to the Ombudsman. If the code works, you will benefit. If it doesn’t, the request may help document the case for further reform, such as a Freedom of Information Act.
USING THE CODE – SOME PRACTICAL SUGGESTIONS
Applying for information
* If you have been refused information in the past by a government department or agency, reapply for it now under the code – the code applies retrospectively.
* Make a point of mentioning the code in any future requests for information (eg “This is a request under the Code of Practice on Access to Government Information”). However, if you haven’t done this, and have asked for information informally, you will still be able to invoke the code’s complaints process at a later stage.
* Apply in writing, and ask for the information to be supplied “within 20 days as required by the code”.
* Make your request as specific as possible: this will reduce the chances of being charged a fee, or having your request turned down altogether. (Requests which are “too general” or would require “unreasonable diversion of resources” can be refused.) Asking for information covering a short period (eg the last 12 months) is less likely to provoke charges than a request covering several years. If you get the information you can make a further request to cover an earlier period.
* If you want information about a body which is not covered by the code, try applying to a government department with responsibility for that body. For example, nationalised industries are not covered but have sponsoring departments which are. For example, you could try the Department of Trade and Industry for information about the Post Office or the Department of the Environment for information about local government issues.
* Although the code is biassed against the disclosure of documents, the Ombudsman has made it clear that if a document is requested and does not contain exempt information he may recommend that its disclosure. Moreover, departments may make themselves look ridiculous if they withhold documents when the easiest way of dealing with a request is to release them. In practice, documents are often released.
* Ask for documents if you think you need them, and challenge any refusals. You may want to do this when (a) you can identify a particular document which you know exists; (b) you have already been given a summary of the information but need more detail, available only by looking at the original documentation (for example, to check what factors have been taken into account in reaching conclusions, or to assess the methodology); (c) you have some other particular need to see an actual report – for example, because it directly affects your personal affairs; (d) documents of this kind have been released in the past; (e) you think it will be much easier for the department to release a document than to summarise it.
* If the government announces a new policy or decision relevant to your work or interests, ask for the “facts and analysis of the facts” which underlie the decision.
* The code says the facts and analysis which “the Government considers relevant and important” will be published voluntarily at the time of the decision [Paragraph 3(i)]. The obvious weakness is that this depends on the government’s view of what is relevant. The phrasing is probably intended to prevent the Ombudsman challenging decisions. However, unless or until the Ombudsman says that he cannot investigate such complaints you should ask him to intervene. Before asking for such information, check what factual and analytical material has been published (for example, in Hansard, when the decision was announced). If you think it is inadequate or one-sided ask for more facts or analysis. Complain if you don’t get them.
* Individuals should be able to obtain information from non-computerised (‘manual’) files held about them by government departments or agencies under the code – including information recorded before the code came into force.
* The new NHS code (see page 10) may help to overcome the present restriction in the Access to Health Records Act 1990, on access to pre-1991 medical records. The NHS code does apply to information in these earlier records.
* It will also apply to information in other kinds of personal files held by government bodies, for example social security or tax records. The code does not commit departments to releasing copies of the records themselves (only ‘information’ from them) but the Ombudsman’s ruling on this point (see page 4) means that it is worth asking for particular documents when you know or suspect that they exist and challenging any refusals.
The code lists 15 classes of exempt information – some of them extraordinarily broad. These (in edited form) include:
* information harmful to defence, security and international relations;
* information whose release would harm the frankness of internal discussions: including details of cabinet proceedings; internal advice; projections and assumptions relating to internal policy analysis; and analysis of alternative or rejected policy options;
* communications with the Royal Family and Privy Council proceedings;
* information which would prejudice the administration of justice or legal proceedings or a public inquiry, including information which has been or is likely to be addressed in such proceedings; information relating to completed proceedings or to investigations which might have resulted in proceedings; information covered by legal professional privilege; information which could prejudice the prevention or detection of crime or the apprehension of offenders or the security of buildings; information harmful to public order, public safety or individual safety or which could identify confidential informants; information which could increase the chance of damage to the environment or endangered species;
* information about immigration, nationality and entry clearance cases which would prejudice immigration controls;
* information which could harm the management of the economy or prejudice the collection of taxes;
* information which would prejudice a department’s competitive position or negotiations or the proper and efficient conduct of its operations;
* personnel and vetting records;
* requests which are vexatious, manifestly unreasonable, too general or would require unreasonable diversion of resources;
* information which is shortly to be published or whose release would be “premature in relation to a planned announcement”;
* incomplete analysis or research which could be misleading if published or information about companies or products held for statistical or research or health and safety or food surveillance purposes;
* personal information whose release would be an unwarranted invasion of privacy;
* information which would harm the competitive position of a third party;
* information supplied in confidence by a third party who has not consented to its disclosure;
* information whose disclosure is prohibited by law or international agreement or which would breach Parliamentary privilege.
Despite this overwhelming list, do not be put off asking for information:
* The exemptions are discretionary – they allow, but do not require, departments to withhold information.
* Even exempt information may be disclosed under the code where there is an overriding public interest in disclosure.
* Even if the information is withheld, the refusal (if it is unreasonable) will help to document the code’s limitations.
If information is refused, insist on being told which of the code’s exemptions has been relied on. It is a requirement of the code [paragraphs 3(iii) and 5] that people are given reasons for decisions affecting them, and this includes reasons for withholding information.
Disclosure in “the public interest”
The code states that where exemptions refer to the possible harm that may result from disclosure, the exempt information may be released where:
“any harm or prejudice arising from disclosure is outweighed by the public interest in making information available” [Part II, preamble].
This is a valuable principle. But departments are likely to resist pressure to disclose exempt information, however strong the case for it. You may need to persuade the Ombudsman of the public interest in disclosure: don’t assume that it is self-evident. If the Ombudsman is persuaded, he will have to persuade the department to agree to release the information. Since the Ombudsman has no power to compel disclosure, this could be a source of contention.
Arguing the public interest case
There is no definition of “the public interest” in the code. However, in referring to the general aims of the code, the Cabinet Office’s guidance states:
“The public interest in disclosure is particularly strong where the information in question would assist public understanding of an issue subject to current national debate, or improve the transparency and accountability of a particular function of Government” [Guidance, Part I, paragraph 3 Note: all references to the Guidance are to the first edition, published in 1994]
You may also want to argue the public interest case in terms of the need to: protect public safety or the environment; correct an abuse of authority or improper conduct in public office; remedy injustice to an individual; secure compensation for people who have been injured; expose the improper use of public funds; or prevent crime or corruption. Provide as much evidence as you can. Any precedent for disclosure of similar information in the past will be helpful.
The type of information and the degree of harm that could result from disclosure will be crucial:
* It may be easier to argue for disclosure of information covered by exemptions which protect administrative convenience (such as the exemption for information which would “harm the proper and efficient conduct” of a department’s operations) than for information with implications for defence or national security.
* On the other hand, if the possible harm to, say, defence is extremely slight and unlikely to occur, and the case for releasing the information substantial – the balance of public interest may favour disclosure.
The government’s guidance on the code gives only one example of exempt information that may be disclosable in the public interest – commercially confidential information. This it says may be released “where disclosure is necessary or conducive to the protection of public health, public safety or the environment” and where these considerations “clearly outweigh financial loss or prejudice to the competitive position of a third party” [Part II, paragraph 13.13].
The code of practice allows charges to be made for most kinds of information. Departments set their own charges and some have set prohibitively high fees, saying that the first hour of staff time will be free but that afterwards £20 an hour will be charged. Others allow more free time before charges start. Fees at this level could make the code too expensive for anyone other than commercial organisations. Unlike the US Freedom of Information Act, fees will not be waived for requests that are in the public interest.
Don’t be put off by charges
Despite these potentially high charges, do not be put off from making requests:
* Certain types of request under the code must be granted free of charge.
* You must be told of the charges in advance and asked if you will agree to them.
* Departments often decide not ask for a fee – even though their charging policy may allow them to do so.
* You may be able to reduce or avoid charges by making your request more specific, or narrower, so that it involves less work.
* You can – and should – challenge unreasonable charges by complaining via an MP to the Ombudsman. Some departments’ charging schemes appear inherently unreasonable. Do not accept charges just because they are in line with published charging arrangements.
When requests should be free
* The ‘Open Government’ White Paper (Cm 2290) says “it is not the intention to charge for information which is now routinely provided free of charge”. Departments will probably be tempted to do so. Any such charge should always be challenged.
* The Cabinet Office guidance says charges should not be made for information which departments should disclose as part of the “fair and accountable performance of their functions” [Guidance, Part I, paragraph 71]. However, the examples of such information given are limited (see the next point). Quote the above statement to argue that any information needed to hold departments properly accountable should be available without charge.
* The only information which the Cabinet Office explicitly says should be provided free is information explaining: “benefits, grants, rights and entitlements; the standards, and availability of services; the reasons for administrative decisions made in applicant’s case; the ways in which the citizen may exercise rights to appeal or complain about a decision; regulatory requirements affecting affairs of a business, or common interests; the main points of existing departmental policies or initiatives”.
* In all other cases, the Cabinet Office guidance states that “The general presumption should…be that requests under the Code should be charged for, when they cause additional work…Charges will generally only apply where a request is novel or requires a department to undertake work which it would not have undertaken if the request had not been made…” [Guidance, Part III, paragraphs 1-3].
* Departments are likely to ask for fees to be paid before they provide information. If you challenge these, you may hold up the information. To avoid delay, you may want to consider paying the fee – if you can afford it – but at the same time challenging its reasonableness, and trying to have it reduced or set aside afterwards.
* If you are asked to pay a prohibitively high fee, consider asking an MP who may also have an interest in obtaining the same information, whether he or she will apply for it in a written Parliamentary Question. There will be no charges for this. However, if the cost of answering the question is likely to be more than £450, ministers may refuse to answer.
NHS bodies are subject to the separate Code of Practice on Openness in the NHS which came into force on June 1 1995.
* The NHS code applies to health authorities, health boards and NHS trusts, family doctors, dentists, opticians, pharmacists and community health councils and certain other NHS bodies such as the Mental Health Commission, the Public Health Laboratory Service, the Prescription Pricing Authority and others.
* Complaints under the Code are made to the Health Service Ombudsman, not the Parliamentary Ombudsman.
* The Department of Health and the NHS Executive are subject to the central government code of practice – not the NHS code – as are the corresponding departments within the Welsh, Scottish and Northern Ireland Offices.
* The NHS code itself is similar to the central government code, though there are some differences in the exemptions. Copies of the NHS Code and the separate Guidance on Implementation can be obtained from The Open Government Task Force, NHS Executive, Room 5/E/59/Quarry House, Quarry Hill, Leeds LS2 7UE, Tel: (01132) 546370/545121.
MPs can themselves make applications under the code. However, if they do they will be charged for information on the same basis as other users.
* MPs will not be able to ask the Ombudsman to investigate any refusal to answer questions in Parliament. However, if MPs make separate applications under the code, they can use its appeal mechanism.
* At the end of the day the Ombudsman can only give an independent view on whether a refusal is justified under the code, and try to persuade a minister to release the information if it is not. He cannot compel a minister to release information.
* Where a parliamentary question has been refused on the grounds that an answer would involve a “disproportionate cost” (ie that it would cost more than £450 to answer) MPs may not find the code helpful, as they are liable to be asked to pay such amounts themselves.
* You must ask the department to review its own decision before you can take a complaint to the Ombudsman. The easiest way to do this may be to ask the person who took the original decision to arrange for the decision to be reviewed at a higher level within the department or agency.
* When asking for a departmental review, give your reasons for thinking that the original decision was wrong, that charges are unreasonable, or that the public interest in a disclosure outweighs any harm.
* The code gives no time limits for these reviews. If you think a department’s review has already taken too long, tell it that unless you get an immediate decision you will complain, via an MP, to the Ombudsman both about the delay and the original decision.
Complaints to the Ombudsman
You cannot complain to the Ombudsman directly but must ask an MP to forward your complaint. However, this can be done by any MP – not just your constituency MP.
Consider complaining to the Ombudsman about:
* any withholding of information which does not appear to be justified under the code’s exemptions
* the withholding of exempt information where you think there is an overriding public interest in disclosure
* replies which you suspect are misleading, incomplete or one-sided
* the failure of a minister, department or agency to publish an adequate account of the facts and analysis which have led to a major decision or policy announcement
* the failure to give reasons for any decision affecting you, including any decision to withhold information
* the failure to give access to internal rules, guidance and manuals affecting a department’s or agency’s dealings with the public or businesses
* unreasonable delays in releasing information
* unreasonable charges
Personal accounts of people who have seen or needed to see their own health records
This briefing was produced in 1990 at the time of the passage of the Access to Health Records Act, which gave people a right (subject to limited exemptions) to see their medical records. Most of the act has now been repealed as its provisions have now largely been incorporated into the Data Protection Act (1998) however part of the 1990 act, dealing with access to records needed to bring a claim arising from the death of a patient, is still in force.
“After I Saw the Full Record I Felt I Was a Whole Person”
Ms A was born with a rare form of cerebral palsy – but she didn’t learn the diagnosis until she was 43, and then only by accident.
She had applied for mobility allowance, been refused, and appealed against the decision. Before the appeal the DHSS sent her the papers relating to her case, including medical reports. It was from one of these, written by her own consultant, that she learned that her condition had a neurological cause. After following this up, she discovered in 1983, for the first time, her specific diagnosis.
Until this time she had suffered severe pain and problems with her limbs. Though she had been treated for them, and undergone surgery, she had never been told the diagnosis or understood that the problems had a neurological basis. She says the knowledge that her condition had never been revealed to her came as a shock. But knowing was a great help. For the first time she could begin to understand and learn more about what was wrong with her and actively seek advice and support. She says that had she known earlier her whole approach to her difficulties would have been different.
However, she was still not satisfied with what she knew and in 1988 asked her GP if she could look at her medical records. She was allowed to do so – and discovered to her amazement that the first entry related to 1979. All her earlier records were missing. She then contacted the family practitioner committee and was able to locate the rest of the file. For the last 9 years they had been left with the former GP, who was no longer treating her, filed under “lost records”.
She then realised that her vital information about her condition had not been available to her GP, who only had details about her recent symptoms. The missing information included reports from a consultant neurologist sent in error to a former GP.
“The discovery explained some of the terrible problems I had experienced, over a period of 12 years, in getting my disability recognised and properly treated. My new GP had been extremely helpful, but she had no record of the fact that I had a serious neurological condition, and that I had undergone major surgery related to this in 1960. She just thought I had an orthopaedic condition, because I was telling her I had been seen by an orthopaedic consultant. After I saw the full record I felt I was a whole person. I was able to ask for and get proper health care. I was able to make decisions I’d never been able to make before. All the questions I’d asked had been answered.”
“The Doctor’s Secretary Kept Saying They Didn’t Have to Give Me Any Information”
Mrs B has tried to get information from her medical records to learn what make of contraceptive device she had been fitted with. But this simple request has led to great frustration.
Mrs B is infertile, and a doctor treating her suggested that the problem could have been caused by the use of the Dalkon Shield intrauterine contraceptive device (IUD) which is known known to have caused such effects. Mrs B had an IUD – but doesn’t know what make. If it was the Dalkon Shield she would probably have been entitled to compensation from its manufacturer. Although her family planning clinic confirm they were issuing the Dalkon Shield around that time, she has not been able to establish whether she received it.
Her enquiries revealed a dismaying picture of medical record-keeping:
1. The family planning clinic which fitted the device in 1974 say they have destroyed her records. This is routinely done after 8 years.
2. The Health Authority say her family doctor would have been informed at the time the IUD was fitted and the letter should be in the GP’s file.
3. But her current GP says he received no medical records on her when she joined his practice in 1982.
4. Her former GP says he hasn’t got the records either. They appear to have been lost.
Her last hope was that the details might be held by the infertility clinic she attended over the last 11 years. She thinks she may have known the name of the device at the time and told them when she began treatment. However, her efforts to get information from the clinic’s records proved a final source of frustration.
She wrote to the clinic twice, but says she received no reply to – or even acknowledgement of – her letters. Then she started to telephone:
“They treated me as a nuisance. They were quite rude at times. The doctor’s secretary kept saying they didn’t have to give me any information. The receptionist knew where the records were. It seemed everyone else could look at them except me. Finally the receptionist fetched the notes and put them on the secretary’s desk – and they must have stayed there for a few months. At one point the secretary actually had the records in front of her while she was on the phone to me, and quoted some of the dates I had attended the clinic, but she wouldn’t give me the information I needed. I said could I come up and look at them for myself. She said it was out of the question. I rang up so many times I was on first name terms with the receptionist. Had it gone on much longer I would have been too late to claim compensation. In the end I just wore them down. Eventually after six months of trying I got a three line letter from the clinic. It just said they didn’t know what device I’d been given.”
“Half My Records Weren’t About Me – They Were a Shambles!”
“I’d gone to the doctor about a minor matter and he asked if I’d ever been in hospital. I said only for an operation for an abscess at the base of the spine. He looked in the notes and said ‘I was thinking of the other hospital’. I said what hospital? He said: ‘It says here you were an inpatient in a mental hospital for 6 months.’ I told him I’d never been in a mental hospital. I got the impression he didn’t believe me.
“I asked him if he had the details of my operation in the notes. There was nothing. Then he examined me, saw the operation scar, and that made him believe there might be something wrong with the records. The problem I’d been operated on for flared up again 4 or 5 years later, and that wasn’t there either. He went through parts of it that were all wrong. I said ‘I’ve never had a doctor in that area. That was never my doctor. None of that applies to me.’ It wasn’t just the odd sheet. I discovered that about half of my records weren’t about me. There was obviously a shambles.”
The GP got in touch with the medical records section. He discovered that parts of the record referred to another person of the same name with a similar birthdate. “We both appear to have been with the same doctor at one time”.
“Could I have been given the wrong treatment at any time as a result of the incorrect information contained in ‘my’ notes? Could some treatment have been withheld for the same reason?
“I have always been in the habit of agreeing to prospective employers writing to my doctor concerning my health. Did the answers they received ever unjustly prejudice them concerning me? If you’ve applied for a serious job and they see you’ve been in treatment for mental problems it could cause all kinds of problems.”
He has still not been able to see the records for himself and check that everything that shouldn’t be there has been taken out. “There could be all kinds of other information that is incorrect.”
“Can You Imagine Feeling Relieved at Being Told You Had an Incurable Heart Condition? I Was!”
“In December 1983, 3 years after a massive heart attack I had an emergency two by-pass heart operation. After the operation, chest pains continued worse than before but during my next 7-8 visits and numerous tests I was assured that I was well and finally that I could resume work. But I knew I wasn’t well, and kept asking for more information.
“I was treated as someone who was pressing a point when they would rather not have it pressed. Often it’s best to wait and see how things develop. But sometimes the patient – as in my case – knows something is wrong but can’t get any satisfaction.
“Finally a new doctor advised me that I ‘should accept that my condition was incurable’ and that they could do ‘no more for me’.
“Can you imagine feeling relieved at being told that you had an incurable heart condition? I was! For over 3 months I had worked myself into a state of acute anxiety because neither the hospital nor my GP would acknowledge that I had anything wrong with me. I had reached the state where one hospital doctor tried to put me on valium. The surgeon’s secretary told me that I caused trouble for them on each visit.
“I knew the state I was in. I knew the problems I was having but I could not get anyone take them seriously. They were well-meaning. They probably felt that if they told a person he was incurable he would go downhill.”
Later a surgeon offered him another operation, which he had, but he says, “the spread of the disease was so extensive that the surgeon had to give up.” He can now walk only a few yards at a time, and is in a wheelchair.
“I have no complaint against the wonderful staff of the hospital or of the care I received but ‘honesty’ could have saved me months of anxiety, when anxiety is known to aggravate my condition.”
“The Note in My File Said ‘Patient Not Informed'”
“I had problems with my periods and went for a D&C [dilation and curettage: scraping of the lining of the womb] around 1980 and recovered normally. Some years later, around 1987, I happened to see my hospital notes. They included a pathology report which said they had examined the material obtained during the D&C. It said:
‘Foetal villi. Ectopic pregnancy?’
“A note by the clinician said:
‘See pathology report. Patient not informed’[‘Foetal villi’ indicates the remains of a foetus; ‘ectopic pregnancy’ is a pregnancy outside the womb]
“I was furious. I didn’t even know that I had been pregnant. I hadn’t felt anything. He must have made a judgement that it would have been better not to tell me. Perhaps he thought I would have been upset. I just don’t think doctors should make such judgements. I don’t even know if my GP had been informed. I can’t imagine what made him think he shouldn’t tell me. If I’d have known I would have asked for further investigations to make sure I could still get pregnant and if so if I would have any problems. I just felt I hadn’t been given the information I needed to make decisions on. No-one mentioned it.
“The thing about an ectopic pregnancy is that if you have one you tend to have more than one. It can ruin the fallopian tubes. But I had no further investigation, and I didn’t ask for it.
She subsequently became pregnant and suffered severe problems during the pregnancy. “If I’d have known about the first pregnancy I would have asked for more investigation and for my later pregnancy to be monitored more carefully.”
“The Consultant Had Written That I Was Deliberately Making Myself Ill”
“Some years ago I had investigations for intermittent diarrhoea at a Teaching Hospital. My GP behaved evasively when I wanted to know what the Consultant’s letter said.” (She later succeed in getting sight of her record.)
“My checks revealed that:-
1. the Consultant had told my GP that a positive urine test for senna indicated that I was surreptitiously taking laxatives and causing my own diarrhoea.
2. the positive senna test had actually been taken, obviously in error, on the morning after I had officially been given senna in connection with another test [for which a sample of stools had been needed]. The drugs record was still there in the Notes, but evidently the Consultant hadn’t checked it before writing his letter.
“Armed with this information I confronted the Consultant. He was apologetic, but refused to withdraw the original letter from either the Hospital or the GP file. However, he did write a correcting letter – which started:
‘Unfortunately the patient saw my previous letter…’.
“Fortunately, I would have said!
“If I had not had access I would never have discovered the damning indictment in my Notes, nor the mistake which had been made. That indictment would obviously affect the thinking of any future Doctor treating me. In fact…it had already affected the judgement of another Consultant dealing with a totally different matter; not until later did I realise why he had been behaving oddly…
“I now have strong objections to having any tests done, even simple blood tests, without being shown the test report.
“On the few occasions when I have been able to afford to be seen privately, EVERYTHING has been told me, and I have been shown actual reports. Why cannot this be done on the NHS? It greatly enhances the patient’s confidence and so speeds recovery.”
“You Work in a Circus!”
“Some years ago, during a consultation with an orthopaedic surgeon, I was informed that my injury was only to be expected in the sort of life that I led. Failing to comprehend his meaning (I was a statistician at the time, not an occupation normally renowned for the dislocating of shoulders) I was bemused.
“Presuming that the meaning of all this would eventually become clear, I said nothing and waited for enlightenment. It came. ‘Working in a circus as you do’, he explained.
“As it dawned upon me that there had been a mistake, he delivered the coup de grace, ‘You’re a bare-back rider in a circus’, he said, adding by way of quelling any attempt on my part to tell him otherwise, ‘your notes say so’.
“I was then shown my notes and was able to see how a personal comment made by a consultant two years before had become increasingly distorted over time.
“Fortunately, my being a ‘bare-back rider in a circus’ had had no effect on my medical treatment as my occupation was irrelevant.”[From a letter in the Daily Telegraph, 11.12.89]
“I visited my doctor, who happened to leave my medical records on his desk when he was called away from the room for a minute or so. I read the side which was uppermost. It recorded visits to a previous doctor in the area we came from for (a) asthma and (b) obesity – neither of which I have ever had. I pointed this out to him when he returned and commented that someone had evidently made entries on my card which should have gone on to the card of (a) my son and (b) my wife. As far as I can remember he tore up my record card – whether he put the entries where they belonged I very much doubt.”
“My child’s notes are widely available to hospital staff. Yet I as her mother and a Hospital Sister cannot see them”
Mrs A is a part time Hospital Sister. Her daughter, now 6, was born with very serious illnesses and was treated on many occasions at the hospital where Mrs A worked. She has asked to see her daughter’s hospital notes, but has not been allowed access. In 1987, at a time when she was not then working, she wrote:
“I find myself in the ludicrous situation, as an ex-Hospital Sister, having read many hundreds of patients notes in order to enable me to give them thorough care and understanding, whereas I have no access to my own child’s. Her Hospital and General Practice notes are read by all and sundry from receptionists, student nurses, ward clerks, up to the senior medical staff, and yet I as her mother and a Hospital Sister have no access to them”.
Since that time she has rejoined the hospital staff, but has still not been able to see her daughter’s record. She has been told that if it became known that she had been allowed access, others would ask for it, and the hospital would have to divert resources from other areas to provide a reading room and staff to supervise access.
However, with the agreement of her daughter’s current consultant and her GP she has been permitted to read letters from the hospital which are held on her GP’s records. She discovered these contained inaccurate and damaging comments about her home life written by a former consultant, including: “I wonder to what extent the parents even talk to her (the child) directly” and the suggestion that their daughter was “ignored and left for long periods of time in her pram or playpen”.
Mrs A says the consultant had never even visited their home, could not have observed what he described. She says his comments are “Total, total, fiction. I’d be horrified if someone read this. Its the total opposite of what I did for her as a mother during those critical times.”
Both her current consultant and GP agree that the comments are unsupportable, and with their agreement the copy of the letter has been removed from the hospital records. However, another copy remains in the files of the health authority’s community health department.
She says the former consultant had a very odd view of her daughter’s condition and prognosis, and refused to accept her account of how well she was doing. For example, he had said she would reach school age with many physical and mental handicaps, whereas Mrs A says her daughter – who now is in school – is described by teachers as one of the brightest children in the class. Her present consultant describes her as a “success story”. She says her GP used to laugh when he read the consultant’s letters “he’d say, we’ve got another of these letters. He wouldn’t show them to us but he used to hint that they had got things noticeably wrong”.
Mrs A remains concerned that the objectionable letter will have been seen by colleagues she works with at the hospital and mixes with socially, and that other similar comments may still be on the record.
“An enormous number of people in a hospital may see the records. I know a great many of the staff and they know me. Any of them reading this would say ‘Good heavens! What was going on?’ I know some of the staff I work with have read this, which causes me embarrassment. Its put me in an invidious position. The last thing you want in these days of child abuse is to be told you left your child in the playpen and pram and did not talk to her. But that was said with him never having seen the home situation. My GP knew what was going on. He told me: ‘If I really thought any of those things were true I would have told you absolutely straight’. But I still haven’t seen the actual hospital notes. What’s in these, I dread to think.”
“I am a Doctor who is also a Very Ill Patient”
“I am on both sides of the fence. As well as being a medical doctor, I am also a very ill patient. I am certain that my medical records both GP and hospital have hung over me like a sword of Damocles throughout most of my illness. When I see a doctor for the first time I am usually treated reasonably until my notes are available when the attitude changes completely and I am treated completely dismissively.
“The reasons my notes do me so much harm are as follows:
1. Chronically ill patients who won’t get better are none too popular among my well colleagues.
2. Having had to wait for 8 years or so for confirmation of one of my two diagnoses meant that all sorts of damaging remarks got into my notes.
3. Once having got my diagnosis, it wasn’t a condition which is currently popular with doctors so the insults and accusations continue.
4. Once an inappropriate adverse comment is made it is always picked up by future doctors and amplified so that the process of losing credibility takes place spontaneously without any help from me.
5. If certain doctors are made aware of any personal problems (and don’t we all have those?) it can be almost impossible for them to take organic problems seriously.
6. Contrary to the opinions of many people, doctors themselves are frequently treated very badly by their colleagues. Sometimes, in order that the most damaging opinions don’t get into print the phone is used instead with lightning results.
“You will tell from my tone that I am very unhappy indeed as a doctor (of 18 years standing) and more particularly as a patient about the way in which one’s notes can be far more of a hindrance than help.
“Incidentally, I dare not request to look at my notes because that would be construed as ‘trouble-making’ and I’m in enough hot water as it is.”
“Why Was It Necessary to Assess My Character?”
“After the retinue had swept out, I saw my medical file still lying at the foot of the bed. For a couple of minutes I didn’t dare to touch it…
“From childhood I have suffered from a chest disease, so my file is a thick one. My gaze first fell on a letter from a GP to a hospital chest consultant. It was dated 18 years ago. The GP gave a pen-portrait of me which said: ‘This is a nervous introverted anxious little soul.’
“As I had only recently moved to the town, he really knew nothing about me. I was, unbeknown to the GP, going through one of the most harrowing periods of my life: mother dying and a marital breakdown which ended in a high court action to regain my daughter. Normally, I am neither anxious nor particularly introverted, but here, for all time, my character had been assessed. Why had it needed to be assessed?”[From an article by Daphne Glazer, The Guardian, 15.12.89]
“Dealing With a Locum is Delightful – You Can Be Pretty Sure He Hasn’t Ploughed Through Your Records!”
“I attempted to register with a GP following a move in 1982. Having had an excellent and long-standing relationship my previous GP I was dismayed to encounter a noticeable coolness of response when I approached the various doctors in my new town. I was, incidentally, in dreadful pain at the time from a failed operation, but there was no sympathy on offer. One of the GPs finally provided the explanation: although the surgeon I was trying to bring a case against was not even in the region, the surgeon who had operated on my knee where I had previously lived had found about my intentions and written to the GPs in my new town advising them to have nothing to do with me.
“After 6 months without a GP, the Family Practitioner commitee forced a GP to take me on…While the FPC were holding my medical notes I asked whether this defamatory letter was amongst them. He assured me it was not, and that there was nothing detrimental of any kind. As he had been extremely kind and courteous throughout my GP problem I didn’t know whether he was just being reassuring, or whether to believe him. I’ve moved again since but am still dogged by the suspicion that the letter may be in my notes – with this kind of doubt, how can you be easy in your approach to a GP?
“Dealing with an occasional locum, on the other hand, is delightful, as you can be pretty confident he hasn’t ploughed through all your notes!”
“When I Read my Notes I Finally Realised Why the Doctors Hadn’t Believed Me!”
Ms B has been diagnosed as suffering from ME – myalgic encephalomyelitis, or post-viral fatigue syndrome. It began after she had been ill with glandular fever, one of the conditions linked to it. After the symptoms had continued for 18 months her GP referred her for psychiatric assessment:
“The psychiatrist asked me a lot of questions about my youth and my parents. He listened attentively and seemed very sympathetic, until I mentioned how my problems started after I’d contracted glandular fever, at which point to my astonishment, he stated that I had never suffered from that illness. I replied that I’d spent a week at the health centre during my first week at university, and that the GP had based his diagnosis on the results of a blood test. However, before I could finish what I wanted to say, he stood up, walked towards me and repeated that I had not suffered from glandular fever. He had spoken to the GP and read my notes. He told me I was lying!”
Her illness continued for a number of years during which time she saw a number of psychologists and psychiatrists. She later applied to see her medical file, and after some time was able to see it:
“According to the psychiatrists, I was a hysterical personality. These symptoms were my way of attracting attention. With a diagnosis like that, I wasn’t surprised that they’d been so unfriendly and distant. There was just a tiny note in the corner of one page saying I’d had a recurrence of glandular fever, which they obviously hadn’t read. There was no proper reference to it or to my stay at the health centre. I finally realised why the doctors hadn’t believed me all those years ago.
“I wrote a letter to the GP who had diagnosed glandular fever, asking him how he had arrived at that diagnosis. In his letter he confirmed the diagnosis, adding that the blood tests had demonstrated the presence of antibodies to the Epstein-Barr virus (which causes glandular fever). I felt exonerated!
“But because they hadn’t accepted that I had glandular fever they treated me as a psychiatric patient. I was studying psychology at the time, so I was very open to a psychological explanation. More importantly, I thought the doctors knew what they were talking about. I could have got better much more quickly if I’d just gone home and rested. Since I’ve had the diagnosis of ME I’ve been doing the right things – and I’ve got much better.”