Freedom of Information Act 2000 (FOIA) Decision notice Date: 30 March 2016 Public Authority: Address: Wye Valley NHS Trust Trust Headquarters County Hospital Union Walk Hereford HR1 2ER Decision (including any steps ordered) 1. The complainant has requested copies of reports, PAT testing certificates and documents relating to dispute resolution procedures relating to the Wye Valley NHS Trust and its PFI partner, Mercia Healthcare. Further information relating to a dispute resolution procedure was identified and disclosed to the complainant but the Trust maintained it did not hold the remaining information and Mercia Healthcare did not hold the information on its behalf. 2. The Commissioner s decision is that the Trust has complied with section 1(1) of the FOIA when it states that it does not hold the remaining information. He requires no steps to be taken. Request and response 3. On 29 April 2015, the complainant wrote to Wye Valley NHS Trust ( the Trust ) and requested information in the following terms: 1) A copy of the complete Arup Report or reports into fire safety within Hereford Hospital. I understand that this study was commissioned by Mercia Healthcare in late 2012 going into 2013, and refers to fire safety within the hospital so it would be held on behalf of the trust. Although Mercia sought to argue that this was a legally privileged document within the Dispute Resolution Procedure, I note that this argument was rejected by the adjudicator. 1
2) A copy of the Carillion Report which I understand was carried out in mid-2012 in response to the identification of fire safety defects in the CT scanner room but prior to the commissioning of the Leviathan report. 3) The PAT testing certificates between the period 1 st January 2010 and present for the birthing bed involved in a serious electric shock. 4) Copies of all documentation submitted to any further Dispute Resolution Procedure between Mercia Healthcare and the Trust. I would expect this to include the submissions of both parties, any procedural correspondence with the adjudicator and any judgements given on the case. 4. The Trust responded on 1 June 2015. It stated that it did not hold copies of the Arup and Carillion Reports but understood that a report from Arup was commissioned by Mercia Healthcare. The Trust also stated it had no copy of a PAT test certificate for the birthing bed investigated following an incident. 5. For the part of the request numbered 4) the Trust explained that any information would have been provided to the Trust by Mercia Healthcare in confidence and therefore would be exempt on the basis of section 41 of the FOIA. In addition to this the Trust also stated that any submissions to the dispute resolution procedure, proceedings and judgements are exempt under section 32(2) of the FOIA. 6. The complainant wrote to the Trust on 1 June 2015 to request an internal review of this decision. In particular, the complainant was concerned that the Trust had not considered if Mercia Healthcare was holding information on its behalf. With regard to the citing of section 32, the complainant pointed the Trust to an earlier decision of the Commissioner 1 in which it was determined that these sorts of documents do not engage the exemption. 7. Following an internal review the Trust wrote to the complainant. It maintained its position that if documents were held by Mercia then they were held by Mercia for its own purposes and not on behalf of the Trust. For part 4 of the request, the Trust reiterated that the vast majority of information which would be within scope had been provided to the complainant as a result of the FS50519100 decision notice. The Trust went on to explain there had been a later adjudication on a different matter which it considered was still confidential and any proceedings or 1 ICO decision notice FS50519100 2
judgement was exempt on the basis of section 41 and section 42. Mercia s submission was exempt on the basis of sections 41 and 42 and the Trust s submission was exempt on the basis of section 41 and 43. Scope of the case 8. The complainant contacted the Commissioner on 24 July 2015 to complain about the way his request for information had been handled. 9. The complainant listed the areas of the response he was unhappy with. For parts 1 and 2 relating to the Arup and Carillion Reports the complainant explained he believed it was likely the information would be held either directly by the Trust or on its behalf by Mercia. Similarly for part 3 relating to PAT testing certificates the complainant argued that the Trust would hold some record of electrical safety testing carried out on the birthing bed. Finally, for part 4 the complainant stated that the Trust s response indicated there may have been at least one further dispute resolution procedure, possibly around theatre ventilation. 10. The Commissioner corresponded with the Trust and the complainant on these issues to clarify what information was within the scope of the request and what information was within the scope of the complainant s complaint. 11. During the Commissioner s investigation with the Trust, the Trust continued to maintain it did not hold copies of PAT testing certificates. The Commissioner wrote to the complainant about this and he accepted the Trust did not hold the information but considered that it was likely the information was held on the Trust s behalf by Mercia, as is the case for the Arup and Carillion Reports. 12. On the issue of documentation on other dispute resolution procedures; the complainant was able to point to Page 7 of the Settlement Agreement disclosed to him as part of his earlier request. This listed settled claims on: additional water system issues; ceiling void fire detection claims; delivery suite claims; electrical installation claims; inpatient services claims; nurse call claims; theatre ventilation claims; trust breach claims; and water system claims. 13. The Commissioner discussed this with the Trust who explained that the Settlement Agreement listed a number of disputes but these do not always result in an adjudication or court decision and are normally subject to mediation through independent mediators. They do not normally require a Dispute Resolution Procedure. 3
14. The Trust explained that there was a Williams Adjudication Decision concerning the Nurse Call system dispute and of the issues listed in the Settlement Agreement this was the only one which resulted in a dispute process. The Trust initially considered the documents relating to this decision should be exempt from disclosure on the basis of section 36 but later, following further discussions with the Commissioner, agreed to disclose this information to the complainant. 15. The Commissioner had explained to the complainant that the other disputes listed in the Settlement Agreement had been resolved informally without going to a formal adjudication which the complainant accepted. Therefore, following the disclosure of the papers related to the Williams Adjudication the Commissioner considers this part of the request satisfied. 16. The scope of the Commissioner s investigation is therefore to determine if the information requested in parts 1, 2, and 3 of the request is held by the Trust either directly or by virtue of it being held on the Trust s behalf by Mercia. Background 17. The complainant had previously informed the Commissioner that Wye Valley NHS Trust had identified a number of issues with health and safety protocols within Hereford County Hospital, owned and maintained by the Private Finance Initiative (PFI) consortium, Mercia Healthcare Ltd. For example, in 2013 the Telegraph 2 revealed that the PFI contractors had not been maintaining ventilation units in surgical theatres to the correct standard. 18. Following the Commissioner s intervention, in February 2014 the Trust had released information to the complainant in response to a separate FOIA request concerning the Trust and Mercia Healthcare Ltd. This request was for information about schedules containing details of the relationship between the two organisations. The Trust had previously refused to comply with this request under section 12 (cost exceeds the appropriate limit) and 41 (information provided in confidence) of the FOIA. Following the Commissioner s intervention, the Trust released the 2 http://www.telegraph.co.uk/news/health/news/10486246/fault-sees-bugs-pumpedintohospital-ventilation-system.html 4
project agreement schedules and output schedules to the complainant and that case was closed informally, without a decision notice. 19. The complainant had also requested information from the Trust about any dispute resolution process between the Trust and Mercia and the subsequent complaint resulted in decision notice FS50519100. This decision notice led to the Trust disclosure the settlement agreement to the complainant. 20. Another request was made to the Trust for information on the legal and contractual basis for the agreements reached with Mercia, including signed agreements, amended sections of the PFI Project Agreement and information on any changes to the working relationships with Mercia. This was the subject of ICO decision notice FS50572001. Reasons for decision Section 1 General right of access to information held by public authorities 21. Section 1(1) of the FOIA states that an individual who requests information from a public authority is entitled to be informed whether the information is held and, if it is held, to have that information communicated to them unless it is exempt from disclosure. 22. Section 3(2) states that information is held by a public authority if it is held by the authority, otherwise than on behalf of another person, or it is held by another person on behalf of the authority. In this case the complainant has argued that the information in question is held by Mercia Healthcare on behalf of the Trust, particularly in the case of the Arup and Carillion Reports. Arup and Carillion Reports 23. In the case of the Arup and Carillion Reports, the Trust has stated that it did not hold copies of these reports at the time of the request. The complainant has argued that the reports were held on behalf of the Trust by Mercia Healthcare. However, the Trust maintains it does not have access to information held by Mercia. In order to make a decision about this the Commissioner asked the Trust for further details of its relationship with Mercia. 24. In particular, the Commissioner asked the Trust to provide details of its contractual relationship with Mercia and provide information on any parts of the contract which indicated whether or not information is held on behalf of the Trust and what circumstances this would cover. The 5
Commissioner also asked the Trust to explain if the requested information was information created or recorded as part of any contractual work Mercia carries out for the Trust as part of its PFI obligations. 25. When responding to the Commissioner, the Trust explained that Mercia is its own commercial entity and an agreement does exist between the Trust and Mercia but they are not contracted by the Trust to provide services. The Trust leases the hospital building from Mercia along with portering and domestic services, cleaning, maintenance and other subsidiary services but the Trust maintains that Mercia is not under contract to them for this; they simply lease the building and services from Mercia. 26. For the Carillion Report the Trust has requested a copy of this from Mercia but has been unsuccessful in its attempt to obtain this, even when it was requested at Adjudication. For the Arup Report, the Trust has explained that it did receive a verbal summary of the first day of inspection but did not, at the time of the request, have a written copy of the Arup Report. 27. The complainant has clarified that the Carillion Report relates to a structural survey that Mercia commissioned Carillion to carry out following the Trust s discovery of fire safety issues in the hospital. The complainant has not argued that the Trust were not given a copy of this report but has argued that the information is held by Mercia on the Trust s behalf. 28. The Arup Report originated after fire safety defects were found and parts of the hospital declared unavailable. Mercia and the Trust jointly appointed an inspector (the engineering firm Arup) but due to other issues there was no joint appointment and Mercia commissioned Arup on its own. The complainant acknowledges that the Trust made repeated attempts to get Mercia to disclose the Arup Report and this continued throughout the Dispute Resolution Procedure where the adjudicator did not order disclosure of the report but also did not accept it was a privileged document. 29. The complainant has again not argued that the Trust does not hold a copy of the Arup Report but believes there is some requirement for Mercia to provide information to the Trust, as evidenced by the fact Mercia did provide a verbal summary. The complainant has raised queries as to whether this is a contractual obligation and if so if Mercia is carrying out any of the Trust s functions on its behalf. 30. The Commissioner has considered the arguments of the complainant alongside those of the Trust and his own guidance on Information held 6
by a public authority for the purposes of FOIA 3. In this guidance the Commissioner lists a number of circumstances in which information can be held by another person on behalf of a public authority. 31. The examples listed in the Commissioner s guidance are not exhaustive and do not fit every situation. However, they do provide some guidance on the scenarios which might lead to another person holding information on behalf of a public authority. The most likely to be relevant to this case being a contractual arrangement. 32. The Commissioner asked the Trust about the contract it has with Mercia and it has explained, as is common knowledge, that is has a contract with Mercia but there are no provisions in this contract specifically relating to information sharing. The Commissioner has no reason to question these assertions, particularly when the fact that the Arup Report was not disclosed even after adjudication supports the fact there is no contractual obligation on Mercia to provide information to the Trust or it would have done so when it was requested. 33. The Commissioner has also considered whether Mercia could be seen to be carrying out any of the Trust s functions either through statute or contractual arrangements. In this case, Mercia leases the hospital building back to the Trust and leases services to the Trust. The Trust has stated that Mercia is not contracted to the Trust to provide these services - they lease the services and building from Mercia. 34. In the case of both the Arup and Carillion Reports, they were commissioned by Mercia to look into issues with the building. This is Mercia s responsibility as the PFI partner and the commissioning of reports to look into building issues does not seem to be a function of the Trust which Mercia is performing on its behalf. 35. Based on the information available to him, the Commissioner has not seen any compelling evidence to suggest that Mercia holds either of these reports on the Trust s behalf. The attempts by the Trust to obtain these reports which have been refused indicate there is no legal or contractual basis for the Trust to share this information and Mercia were not carrying out functions of the Trust in commissioning these reports. As such the Commissioner is satisfied that the Trust has complied with section 1(1) of the FOIA in stating that this information is not held. 3 https://ico.org.uk/media/fororganisations/documents/1148/information_held_by_a_public_authority_for_purposes_of_fo ia.pdf 7
PAT testing certificates 36. For the PAT test certificate requested in relation to the specialist birthing bed; the Commissioner has considered whether the information is held. The complainant has argued, as with the Reports, that if the Trust does not hold this information directly it may be held on its behalf by Mercia. 37. The Trust explained to the Commissioner that it has no record of a PAT test being carried out on the birthing bed. Expanding on this, it explained that for most equipment there is a list which is produced by the PFI Company (Mercia) who carries out PAT testing. This PAT testing is for hard wired and non-medical electrical equipment. 38. Other electrical items like medical devices have a separate process done in house by the Trust and logged on a database. The specialist birthing bed that is the subject of this request was an item of medical/clinical equipment and therefore the responsibility of the Trust, not Mercia. 39. The Commissioner accepts this position, Mercia have a clear responsibility under the PFI agreement for the building and the provision of electrical equipment. However, the Trust maintains responsibility for all medical aspects and this would include the provision, and maintenance of, medical equipment. For this reason, there is no requirement to consider if the information is held by Mercia on behalf of the Trust and the issue is simply one of whether a PAT test certificate for the birthing bed is held by the Trust. 40. The Trust has stated that no copy of a PAT test certificates for the birthing bed is held because it does not exist. The bed was a new bed purchased by the Trust and as a new piece of equipment it did not have to go through the PAT testing process as new equipment will normally be subject to manufacturing tests. 41. This explanation provided by the Trust seems reasonable to the Commissioner. The Commissioner has referred to the Health and Safety Executive s website 4 on this and notes that it states: New equipment should be supplied in a safe condition and not require a formal portable appliance inspection or test. However, a simple visual check is recommended to verify the item is not damaged. 4 http://www.hse.gov.uk/electricity/faq-portable-appliance-testing.htm 8
42. This would support the position of the Trust and the Commissioner is therefore satisfied that the Trust complied with section 1(1) of the FOIA when it stated that it did not hold this information. Section 10 and section 17 43. Section 17(1) of FOIA explains that if a public authority is relying on a claim that information is exempt information, it must give the applicant a notice which states that fact, specifies the exemption in question and explains why the exemption applies. It must provide this refusal notice within 20 working days. Section 17(5) says that an authority relying on section 12 (cost of compliance) or section 14 (vexatious or repeat request) must also give the applicant a notice stating that fact within 20 working days. 44. At the point at which he submitted his complaint to the Commissioner the complainant was not satisfied with how the Trust had declined his request. He said it had not put forward sufficient arguments against disclosure. 45. Having considered the response, in the Commissioner s view, the Trust has cited exemptions but does not appear to have done so with any consideration of the actual information that is being withheld and it could have provided a better refusal notice under section 17(1) if it had done so. This is emphasised by the fact that during the Commissioner s investigation it took substantial correspondence with the Trust to establish the information within the scope of the request and this then lead to information being disclosed to the complainant. 46. As this disclosure of information was made outside of the statutory time for compliance, the Commissioner considers that the Trust breached section 10(1) in its handling of the request. 9
Right of appeal 47. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from: First-tier Tribunal (Information Rights) GRC & GRP Tribunals, PO Box 9300, LEICESTER, LE1 8DJ Tel: 0300 1234504 Fax: 0870 739 5836 Email: GRC@hmcts.gsi.gov.uk Website: www.justice.gov.uk/tribunals/general-regulatorychamber 48. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website. 49. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent. Signed Jill Hulley Senior Case Officer Information Commissioner s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF 10