Print PDF

Information Commissioner Christopher Graham has described Health Secretary Andrew Lansley’s decision to veto the publication of NHS risk registers as a “significant step in the Government’s approach to freedom of information”.

Mr Lansley cited ‘public interest’ as the justification for his overruling the Commissioner’s decision that the information contained in the risk registers should be disclosed.

Following an application under the FOI, in November 2011 the ICO directed the Department of Health to disclose its Strategic Risk Register and Transition Risk Register relating to the government’s proposals for modernising the NHS.

A leaked draft of the registers (pdf format, opens in new window) said that enacting the proposals could result in higher GP care costs and the Government losing financial control of the NHS.

The 2000 Freedom of Information (FOI) Act states that in ‘exceptional cases’, ministers can veto publications ordered by the ICO and defines the criteria. Ministers have used that right to veto disclosure requests on three previous occasions, but this is the first time the ICO has been overruled on the publication of a document relating to policy-making.

Mr Lansley told Parliament that “The public interest is best served … by officials and ministers being able privately to consider such issues, including any risks”.

According to the Department of Health: “The circumstances were exceptional in this case. The request was made at a particularly sensitive time when the need for a – safe space – was especially high … The Freedom of Information Act was drafted specifically to allow for the Ministerial veto.”

But in his report to Parliament (pdf format, opens in new window) Christopher Graham said that “The arguments employed by the Department … and by the Secretary of State in explanation of the subsequent veto … certainly use the language of ‘exceptional circumstances’ and ‘matter of principle’. But the arguments are deployed in support of what is in fact the direct opposite of the exceptional – a generally less qualified, and therefore more predictable, ‘safe space’.

“As such, the Government’s approach in this matter appears to have most to do with how the law might be changed to apply differently in future.”