Open main menu Close main menu

Request for identity of medical advisers who had provided expert opinion to Department of Health

Privacy
Legislation:
Official Information Act 1982
Section 9
Legislation display text:
Official Information Act 1982, s 9(2)(ba)(i)
Agency:
Government Department
Ombudsman:
Nadja Tollemache
Case number(s):
W2904
Issue date:
Format:
HTML,
PDF,
Word
Language:
English

Request for identity of medical advisers—need to ensure continued provision of medical advice on value of medicines—consultation with advisers—with one exception, no prejudice to the supply of similar information or information from the same source

In February 1991 the Ombudsman was asked to investigate and review under the OIA the decision of the Department of Health not to make available the identity of the medical advisers who had provided expert opinion on the use of Simvastatin to the department. In declining to make the information available, the department had relied on section 9(2)(ba) of the OIA.

The department’s concern about disclosure of the information was that it relies upon experts’ opinions on the value to the community of medicines, and it believed that release of the information would deter doctors from coming forward in future with their opinions on other medicines. Section 9(2)(ba)(i) of the OIA provides for the withholding of information where this is necessary to:

…protect information which is subject to an obligation of confidence or which any person has been or could be compelled to provide under the authority of any enactment, where the making available of the information would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied;

The  Ombudsman’s immediate reaction was to ask the department whether it had undertaken any consultations with the medical advisers involved. The department was of the view that this had not been necessary as it was satisfied that there was an obligation of confidence in respect of the information.

In discharging her review function, the Ombudsman felt that it was necessary to consult the relevant medical advisers. Accordingly, she wrote to each of them asking whether they gave their opinions to the department on the understanding that the information would be held in confidence or that, if disclosed, the individual adviser’s name would be held in confidence. The Ombudsman also sought the advisers’ views on whether, if the name and identifying particulars were to be made available, they would be less likely in future to supply similar information to the department.

The responses the Ombudsman received were very interesting and helpful. Of the fifteen replies received, seven of the advisers said they believed that the information they had supplied to the department had been given on an understanding that the information would be held in confidence. In answer to the question about whether they would be less likely to supply similar information in future if names and identifying particulars were to be made available, nine of the advisers were clear that disclosure would not affect their willingness to supply similar information to the department in future. Although some advisers said that they would be less likely to supply information in future if their identities were disclosed, this was not due to the particular information that they had supplied to the department. Rather, they were concerned that information they might supply in future might be of such a sensitive nature that they would wish it to be withheld. However, there was one adviser who did not wish his name to be released due to the nature of the information he had supplied.

It seemed to be a generally held view that the release of the information at issue in my investigation and review would create a precedent for the release of all information provided to the department in similar circumstances in the future. Most of the advisers were concerned that if the department were to disclose their identities in this case, it would be obliged to do so in all future cases, even where the information they supplied was ‘sensitive’ information. This view reflects a misunderstanding of the scheme of the OIA. The legislation does not provide for a class approach to information. Rather requests must be considered on a case-by-case basis.

The Ombudsman was of the view that, even if she were to accept that the information was subject to an obligation of confidence, for the most part, she was not satisfied that release would be likely (meaning a real or substantial risk) to prejudice the supply of similar information or information from the same source. She noted that most of the advisers did not consider the information to be particularly ‘sensitive’ and that if the advisers understood how the OIA operated, any fears about the release of ‘sensitive’ information, either on its own or in conjunction with the adviser’s name would be removed. The Ombudsman therefore concluded that, with the one exception, release of the information requested in this case would not prejudice the supply of similar information from the same source.

The department accepted this view and agreed to release the relevant information to the requester. The department was very pleased with the results of this investigation and saw it as a worthwhile exercise. It circulated the Ombudsman’s view within the department as a guideline for future requests of a similar nature. The Ombudsman also sent her view with deletions to the advisers she had consulted so that they could understand her reasoning in reaching the view.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

Last updated: