Investigations – can you talk freely within a “safe space” and be protected from disclosure? Tribunal decision makes this unlikely.

A new decision from the First-tier Tribunal highlights learning points for public authorities using the “safe space” exemption when navigating FOIA requests.

The First-tier Tribunal (Information Rights) (FTT) (IR) ruled that the North Devon Healthcare NHS Trust was required to disclose a 2017 report prepared by the Royal College of Obstetricians and Gynaecologists about its maternity services under the Freedom of Information Act 2000.

A BBC journalist, Mr Hill, had requested full disclosure of the 2017 report from the Trust but it had refused the request for the full version choosing to publish an executive summary of the report. 

The Trust’s refusal was based on two exemptions under section 36 (Prejudice to the effective conduct of public affairs) and both were subsequently upheld by the Information Commissioner.

Prejudice to the effective conduct of public affairs

• Section 36(2)(b): disclosure of the information would, or would be likely to, inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation
• Section 36(2)(c) disclosure of the information would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

Mr Hill successfully appealed the IC’s decision.

Comment

Whilst such cases as Mr Hill’s are very fact specific, the Tribunal’s observations about the use of the “safe space” FOIA exemption are of wider importance.

North Devon argued that there was a need for safe space and that section 36(2)(b) was engaged and that disclosure would discourage staff from participating in reviews and discussion in the future for fear of public disclosure. It stated that they would be “less inclined to assist, cooperate and provide their honest, free and frank opinions and information”.

However, the Tribunal noted comments made by RCOG in its executive summary that: “The assessors found that staff at all levels were willing to engage in the review process.” It also noted the professional and regulatory obligations of doctors and midwives set out by the General Medical Council and the Nursing and Midwifery Council to engage and contribute to quality assurance and quality improvements to promote patient safety.  

The Trust argued that it “...must be allowed the safe space to review and examine its services, consider the recommendations made and decide on what action to take.”

However, of wider import are the Tribunal’s observations:

“In the normal course of events the tribunal would give significant weight to such an opinion. The difficulty is the Trust has had a safe space for a number of years. The issues were identified in a RCOG review in 2013, by the CQC in 2014 and 2015 and yet when the RCOG conducted a further review in 2017 the situation was not materially different. The Trust had had ample opportunity to move forward within the protection of the safe space. It had failed to do so. Perhaps on this occasion the safe space has not served to facilitate clear thinking, but to enable an unsatisfactory state of affairs to continue.”

The Tribunal went on to conclude that:

“The public interest in understanding the difficulties of this unit is substantial. The difficulties had gone on for too long and the public interest in disclosure of the report at the start of 2018 outweighed any likely good that protecting the safe space could achieve.”

Point to take away

The safe space exemption cannot be relied on indefinitely – the cogency of the section 36 argument is likely to be at its height and more persuasive when the issues being investigated are still active. But, what’s the point then? The idea of a safe space is to allow free and open discussion protected from disclosure –any time, not just during the investigation. It could be argued that that is the best way to improve patient safety.