Regrettably, In This Instance, I Am Refusing To Provide The Information You Have Requested On The Basis That

2nd Floor, Parkway 3 Parkway Business Centre Princess Road Manchester M14 7LU

Tel: 0161 765 4000

17 February 2012

To: [email protected]

Dear Dr Bright

Review of Freedom of Information Request: Reference M008-12 Freedom of Information Act 2000. Data Protection Act 1998.

I write further to your email of 18th January 2012 asking for a review of the decision not to disclose all information originally asked for in your Freedom of Information Act request dated 9th January 2012. You will have received my letter of 9th February 2012 seeking your agreement to a slight delay in responding. I am now pleased to be able to write to you with the outcome of my review.

I have dealt with the issues you have raised under the terms of the legislation above.

For the avoidance of doubt, your email of 18th January identifies that:

1. Manchester Primary Care Teaching Trust has not provided you with details of the ethnicity of the whistleblowers

2. An internal review is also requested to check that (other whistleblowing cases) do not exist

The review was conducted in accordance with the established procedures laid down by NHS Manchester.

1. Ethnicity:

Following the review I am of the opinion that NHS Manchester was correct to rely upon the Freedom of Information Act 2000 S21 exemption ‘information accessible to the applicant by other means’ for all of the information you requested due to the extensive news coverage of the case, except for the ethnicity of the whistleblowers which I accept is not readily available.

I confirm that NHS Manchester holds the ethnicity details of the whistleblowers, however I do not intend to disclose this on the basis that the information you requested falls under the exemption in Section 40 (personal information) of the Freedom of Information Act 2000. Section 40 (2) together with the condition in Section 40(3)(a)(i)or 40(3)(b) of that Act provides an absolute exemption if disclosure of the personal data would breach the Data Protection Act principles which I believe will be the case in these circumstances.

I am of the view that given the small number of people identified as whistleblowers in this case means that ethnicity data if supplied together with the other data in the public domain could be linked to one of the individuals and is therefore their sensitive personal data and disclosure would breach the rights of those individuals to privacy.

For NHS Manchester to disclose personal data into the public domain there needs to be a justification under the Data Protection Act 1998. Principle 1 of the Data Protection Act requires that

‘personal data shall be processed fairly and lawfully and, in particular shall not be processed unless –

(a) at least one of the conditions of Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is met.’

Part 1 (2) of that Act identifies information about a person’s racial or ethical origin as ‘sensitive’ requiring both a Schedule 2 and a Schedule 3 basis for disclosure. I am of the view that public disclosure of that information cannot be justified as necessary under any Schedule 2 grounds. Furthermore, I do not consider that public disclosure of this information would be justified under any of the grounds required under Schedule 3.

I am also of the view that in all the circumstances the rights of the individual to privacy concerning their ethnicity outweigh the public interest in disclosing that sensitive personal data. I do not consider that employees of NHS Manchester would expect NHS Manchester to put their ethnic origin into the public domain.

Accordingly, I am satisfied that provision of this information would result in a breach of the Data Protection Principles and NHS Manchester has withheld the information correctly under the relevant provisions of Section 40 of the Freedom of Information Act.

2. Other Cases:

In examining whether or not there are other cases of whistleblowing during the period you specify (the previous three years from your email of 9th January 2012) I have reviewed not only those cases investigated formally under the PCT’s current whistleblowing policy, dated July 2009, but also both complaints from the public and grievances or concerns raised by employees which might be construed as whistleblowing. I have had recourse in undertaking this part of the review to the examples of the kinds of issues which are considered whistleblowing under the PCT’s policy (p. 11 of the enclosed document). I have been cognisant that this list is not exhaustive, but nevertheless, it has been a valuable guide in helping to identify possible whistleblowing actions outside of the formal policy itself.

To this end, I can advise you that were 3 complaints by members of the public which I believe fall under the remit of the whistleblowing policy. All three complaints were made by females. We do not hold data on their ethnicity, and, by definition, they were not subject to any form of employment contract.

I can also advise that there were 2 concerns raised by members of staff which also fall under the remit of the whistleblowing policy. Both complaints were by females and both were permanent contract holders. Both complaints were raised by people who defined themselves as ‘White British’.

I trust you will find this information of assistance. I am sorry that this full set of information was not disclosed in the first instance. The initial response was based purely on the application of the PCT’s whistleblowing policy and, as such, was correct. In my review, as I have noted, I have taken a rather wider approach with the result that I am able to disclose additional information to you.

If you are unhappy with the outcome of the review you have the right to ask the Information Commissioner to consider the handling of your request. They can be contacted through the following hyperlink https://www.ico.gov.uk/Global/contact_us.asp x

If you have any queries about this letter, please contact me. Please quote the reference number above in any future communications to make it easier for me to deal with your correspondence.

Yours sincerely

Chris O’Gorman Quality, Innovation, Productivity and Prevention (QIPP) Director For and on behalf of NHS Manchester