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Specific keyword terms of interest
Source: WhatDoTheyKnow
Authority: NHS Improvement
Status: The request was
refused
by
NHS Improvement
.
Imported path: /opt/loancharge/imports/wdtk/requests/specific_keyword_terms_of_intere
Open original request on WhatDoTheyKnow
Imported text
SOURCE: WhatDoTheyKnow
SOURCE_URL: https://www.whatdotheyknow.com/request/specific_keyword_terms_of_intere
TITLE: Specific keyword terms of interest
AUTHORITY: NHS Improvement
AUTHORITY_URL: https://www.whatdotheyknow.com/body/nhs_improvement
STATUS: The request was
refused
by
NHS Improvement
.
REQUEST_SLUG: specific_keyword_terms_of_intere
CAPTURED_AT: 2026-05-19T07:07:55+00:00
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ATTACHMENTS:
- Campbell_Decision_Letter_05.11.2019.pdf | https://www.whatdotheyknow.com/request/specific_keyword_terms_of_intere/response/1462961/attach/3/Campbell%20Decision%20Letter%2005.11.2019.pdf?cookie_passthrough=1 | application/pdf | 185962 bytes
- [not downloaded] | https://www.whatdotheyknow.com/request/specific_keyword_terms_of_intere/response/1462961/attach/html/3/Campbell%20Decision%20Letter%2005.11.2019.pdf.html | | 0 bytes
- Campbell_10.01.2020_response.pdf | https://www.whatdotheyknow.com/request/specific_keyword_terms_of_intere/response/1498221/attach/3/Campbell%2010.01.2020%20response.pdf?cookie_passthrough=1 | application/pdf | 182977 bytes
- [not downloaded] | https://www.whatdotheyknow.com/request/specific_keyword_terms_of_intere/response/1498221/attach/html/3/Campbell%2010.01.2020%20response.pdf.html | | 0 bytes
================================================================================
MESSAGE 1 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
20 July 2019
Delivered
--------------------------------------------------------------------------------
Dear NHS Improvement,
I would like to make a freedom of information act request under the Freedom of Information Act 2000 for:
All information held following a search of the email inboxes and sent messages of:
1) former Senior Agency Data and Intelligence Lead Martin Innes; and
2) his successor in that job; and
3) Martin Innes's (and, if different, his successor's) immediate supervisor during this period.
over the period February 2017 until November 2018 inclusive for BOTH of the two terms listed in each of the following numbered requests (in the same email including in the email conversation reproduced before an email which has been replied to or forwarded):
1)'IR35' AND 'policy decision'
2)'off payroll' AND 'policy decision'
3)'off-payroll' AND 'policy decision'
4)'blanket' AND 'policy decision'
Regardless of capitalisation (i.e. could the search please not be case sensitive) and, for clarity, the inverted comas themselves are not part of the string which is sought . Any emails found in multiple entries need only be reproduced once (or can be reproduced multiple times if this makes the job easier at NHS Improvement's side).
Please search inboxes, sent messages, and, if there are emails in them, the drafts and deleted emails folder (these are still held). Attachments to emails identified are to be considered within the scope of the request and should also be disclosed, any email discussion/forwarded emails contained beneath messages identified should similarly be considered within the scope even if those replies do not include the keyword terms themselves (and similarly for emails identified because they are reply to one of the key phrases identified and the key phrase is in the message history beneath the reply).
The to, from, subject, and date/time information of the emails identified are to be considered within the scope of the request - as is as much of the email as can be disclosed - eg the domain name (part after @) of the email should be disclosed in all instances.
Searching for emails which contain both terms of interest within the same email should be simple and your IT department will be able to direct you as to how to do this very easily, but with view to providing assistance to your FOI team in complying, and making the search simpler for you, you may find this link useful in explaining how to search for two words/phrases simultaneously
https://www.groovypost.com/howto/add-fir...
if this is unhelpful your IT team will be able to achieve it on most versions and packages.
This search if obviously different to any preceding ones and cannot be conducted on publicly available information in the case of point 1 as redactions on NHS Improvement's part may have excluded the words 'policy decision' and, even if no more information itself were disclosed the knowledge that the words 'policy decision' were contained within the email would provide significant new information of interest to us.
I would ask that ALL non-exempt information is released please (and could this include the words 'policy decision' where they are contained in any redacted sections as outwith context they cannot be sensitive even if the rest of the sentence were caught by an exemption). Could all qualified exemptions please be fully explained and justified with reference to the public interest and, where relevant, prejudice tests. Should it be alleged that any of the information is covered by Section 36 please name the specific Minister of the Crown acting as a 'Qualified Person' or the named Minister of the Crown upon whose authority under Section 36(5)(o)(ii) or (iii) the 'Qualified Person' is acting (and additionally identify the qualified person, if different). Please also disclose which test of reasonableness was employed, and the full reasoning behind it.
Where information is alleged to be commercially sensitive please disclose the exact subsection of the act relied upon and the full reasoning of the public interest tests with reference to the included public interest representation. Where it is alleged that to disclose information would constitute actionable breach of confidence please remember that it is a requirement not just that action could be brought for breach of confidence but that, if brought, it would succeed at court, It must be remembered that such court cases consider the public interest. Where it is asserted that actionable breach of confidence would be a valid reason for non-disclosure please disclose the signed and dated non-disclosure agreement preventing disclosure, and disclose all aspects of any related email it is possible to disclose - including subjects, headers, as much of the email address as can be disclosed etc.
When redacting emails it is reminded that the Section 40 exemption for personally identifiable information is not relevant to senior civil servants/high office holders within NHS Improvement or other public bodies/quangos with whom NHS improvement is corresponding, and, whilst it may be to more junior individuals, that the domain name (the bit that follows the @) of an email address is never personal identifying information as it does not identify the sender (the username comes before the @), and should therefore be disclosed.
Having tested on our side, it has taken two minutes per email address to search to see if two keyword strings are identified in the same email in an inbox, sent message box, and drafts folder (containing thousands of emails). We therefore estimate that complying with the request should take around 24 minutes to complete all the required searches (4 searches of 2 minutes x up to 3 people), and thus the time-limit should not be engaged.
PUBLIC INTEREST REPRESENTATION:
There is an overwhelming public interest in the tens of thousands of health-workers knowing what has occurred here as the caselaw is increasingly suggesting what we have suspected all along - that many, many, public sector workers are being forced into workers-rights-less false employment (almost invariably without individual assessments) following the public sector IR35 reforms in April 2017. The fact that four times out of the five times where a doctor working in a hospital has had their employment status tested in the court the doctor has been found to be genuinely self-employed casts significant doubt upon the widespread blankets occurring following HMRC's infamous webinar with NHS trusts. We are keen to know more about how this situation has come about.
We thank the Freedom of Information department for the important public service it is doing in ensuring open governance and are extremely appreciative of the effort put into answering this request.
We look forward to your prompt reply within the statutory timeframe of 20 days.
Yours faithfully,
Dr Colin Iain Campbell
================================================================================
MESSAGE 2 [incoming]
HEADER: FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
NHS Improvement
24 July 2019
--------------------------------------------------------------------------------
Dear Dr Campbell,
Receipt of your request for information by email dated 20 July 2019 is
acknowledged.
NHS Improvement will respond promptly to your request within 20 working
days following the date of receipt, so by 16 August 2019.
Yours sincerely,
NHS Improvement
Follow us on: [1]Twitter | [2]LinkedIn
NHS Improvement is responsible for overseeing foundation trusts, NHS
trusts and independent providers. We offer the support these providers
need to give patients consistently safe, high quality, compassionate care
within local health systems that are financially sustainable. By holding
providers to account and, where necessary, intervening, we help the NHS to
meet its short-term challenges and secure its future.
NHS Improvement is the operational name for the organisation that brings
together Monitor, NHS Trust Development Authority, Patient Safety, the
National Reporting and Learning System, the Advancing Change team and the
Intensive Support Teams.
show quoted sections
show quoted sections
================================================================================
MESSAGE 3 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
3 August 2019
Delivered
--------------------------------------------------------------------------------
Dear FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
I've attempted to follow the link I provided to assist you and found that it isn't going to the correct article currently (I suspect it was a news page's generic feed address which has since updated).
This is the article I thought might explain how to undertake such a search and make compliance easier for you.
https://www.groovypost.com/howto/search-...
Many thanks for your assistance with this.
Yours sincerely,
Dr Colin Iain Campbell MBChB FRSPH
================================================================================
MESSAGE 4 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
13 August 2019
Delivered
--------------------------------------------------------------------------------
Dear FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
Just a reminder that it will have been 20 days since the request in 3 days time. I look forward to your response and am extremely grateful for the effort put into providing this information. Could I take this opportunity to highlight the pointers contained in the request regarding public interest tests, prejudice tests, and if relevant naming individuals whose authority is used to claim an exemption. Could I also highlight that in every instance the domain name part of the email (eg @nhs.net, @parliament.uk, @hmrc.gov.uk etc) is not personal identifiable information and must be disclosed, job titles should also be disclosed in all instances.
Many thanks for taking the time to process this request. It is very much appreciated.
Yours sincerely,
Dr Colin Iain Campbell MBChB FRSPH
================================================================================
MESSAGE 5 [incoming]
HEADER: FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
NHS Improvement
14 August 2019
--------------------------------------------------------------------------------
Dear Dr Campbell
We write further to your email dated 20 July 2019.
You requested the following information under the Freedom of Information
Act 2000:
“All information held following a search of the email inboxes and sent
messages of:
1) former Senior Agency Data and Intelligence Lead Martin Innes; and
2) his successor in that job; and
3) Martin Innes's (and, if different, his successor's) immediate
supervisor during this period.
over the period February 2017 until November 2018 inclusive for BOTH of
the two terms listed in each of the following numbered requests (in the
same email including in the email conversation reproduced before an email
which has been replied to or forwarded):
1)'IR35' AND 'policy decision'
2)'off payroll' AND 'policy decision'
3)'off-payroll' AND 'policy decision'
4)'blanket' AND 'policy decision'.”
Please note, with regard to former members of staff who have now left NHS
Improvement, we are only able to access email accounts for the last 6
months. NHS Digital owns these records and its policy is to keep emails
for the last 180 days only. Therefore we are not able to conduct any
searches into the former Senior Agency Data and Intelligence Lead’s email
mailbox as he left our organisation over 6 months ago.
In respect of staff who are still employed by NHS Improvement, we have
carried out an initial search and this has resulted in hundreds of emails
being returned between the two listed email accounts. Although we have
been able to identify the information in scope of your request in a
relatively short amount of time, we consider that to review and redact
this material appropriately would create a grossly disproportionate burden
on NHS Improvement’s resources.
We ask you to refine your query to make it more manageable for processing.
It may be useful if you provided any further background and context into
what you are hoping to find which will allow us to narrow and refine the
search terms of your request.
Alternatively, senior officials in our Agency and Intelligence team have
advised they are happy to meet with you in person to discuss your queries
if you consider this to be useful? If agreeable, we would need to find a
suitable time for all parties taking into account business needs and
existing annual leave arrangements.
We look forward to hearing from you.
Yours sincerely,
NHS Improvement
Follow us on: [1]Twitter | [2]LinkedIn
NHS Improvement is responsible for overseeing foundation trusts, NHS
trusts and independent providers. We offer the support these providers
need to give patients consistently safe, high quality, compassionate care
within local health systems that are financially sustainable. By holding
providers to account and, where necessary, intervening, we help the NHS to
meet its short-term challenges and secure its future.
NHS Improvement is the operational name for the organisation that brings
together Monitor, NHS Trust Development Authority, Patient Safety, the
National Reporting and Learning System, the Advancing Change team and the
Intensive Support Teams.
show quoted sections
show quoted sections
================================================================================
MESSAGE 6 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
16 August 2019
Delivered
--------------------------------------------------------------------------------
Dear NHS Improvement,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of NHS Improvement's handling of my FOI request 'Specific keyword terms of interest'.
Many thanks for your reply. Whilst I am sympathetic to the effort that will be required to go through these emails I am extremely pleased to note that this information, which is of very great use and importance to ourselves and the may assist tens of thousands of healthworkers on whose behalf it is sought, has been found. The fact that there is a lot of material within the scope is indeed extremely encouraging. Our whistleblowing network had highlighted that this was being spoken of as a 'policy decision' - we are very keen to see exactly what has been said as it has affected the livelihoods of tens of thousands of workers -and caused many of their businesses to fail.
Can I therefore reassure you that there is nothing disproportionate about this use of NHS Improvement resources - that this is an excellent use of such resources to protect tens of thousands of workers and their businesses rights, and in ensuring open government in an area where we, and many other bodies, have grave concerns. This is doubly important as the reforms in question may soon be rolled out to the private sector. We will be extremely grateful of the effort put into preparing this information for release.
Internal Review:
We seek an internal review on the grounds of:
1. Having failed to disclose the information
2. Having failed to disclose the information promptly
3. Having failed to cite an exemption, qualified or absolute, preventing non disclosure.
We thank you for confirming that the information has been located quickly and that the time limit does not apply to the request. We are hopeful that the assistance provided in explaining how to conduct the search has somewhat helped with the administrative burden.
As you will be aware the time limit relates to the time taken to retrieve the information, not the time taken to consider whether any exemptions apply. It is both very encouraging for us that a lot of information has been retrieved and equally, I am sure, the fact that our informants were so correct as to identify a lot of information has had the the unintended side effect of being a source of extra work for you - which we do regret but this is certainly necessary. It is unfortunately the rather questionable events taking place in the self-employed health worker market which have created this volume of work rather than our request per say, and understanding exactly what has happened will be vitally important.
We intend to use this information to feed urgently into All-Party Parliamentary Groups, the National Audit Office, and Select Committees, we will also be analysing it to work out how to better support our members and, if possible, to arrive through discussion at a fairer resolution for our members. This information is vitally important and may well have implications for the roll out of the reforms to the private sector.
We therefore request:
1. That an internal review is conducted
2. That all non exempt material is disclosed.
We are sympathetic to the fact there may be a fair volume of work and could be more lenient with the timescale for a response if this would help? But we are keen to have the response in time to feedback to the MPs and parliamentary groups and committees prior to the budget, which we understand from internal discussion is due to occur on 16th October.
Should our request that NHS Improvement honor its statutory duties here as regards the Freedom of Information Act and disclosure of the information be refused we will reluctantly have to involve the ICO and request that decision notices be issued against you and will inform the Loan Charge All Party Parliamentary Group of our concerns.
I should add that we write the above with great sympathy for the effort that will be required to disclose this vitally important information, and also that we would welcome the chance to meet up with some of your team to discuss what has occurred and our concerns, and potential ways forward for our workforce - however this should be in addition to rather than instead of such disclosure.
A full history of my FOI request and all correspondence is available on the Internet at this address:
https://www.whatdotheyknow.com/request/s...
Yours faithfully,
Dr Colin Iain Campbell MBChB FRSPH
================================================================================
MESSAGE 7 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
30 September 2019
Delivered
--------------------------------------------------------------------------------
Dear FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
I write to highlight that you are in breach of their statutory obligations, yet again, due to failure to respond to the internal review request , failure to disclose the information originally requested, failure to cite any exemption, and failure to disclose information promptly.
I am growing increasingly concerned about what may be deliberate attempts to conceal information which is disclosable under the act and materially effects the financial position of tens of thousands of temporary health workers. Our whistleblowers have confirmed that the phrase 'policy decision' has been frequently used contexts of interest to us. Your response was expected by 16th of September - 20 business days post receipt of the internal review request it is now 30th September. Should you require extra time, this ought to have been requested beforehand.
Although the proposed budget date has since been moved, I do still require this information urgently as I am currently writing a submission to a parliamentary review and the failure of NHS improvement to honour its statutory duties under the Freedom of Information Act has adversely affected the quality and quantity of information I can provide for this important purpose . I would request a response confirming that you will release the information requested and giving a clear, and not unnecessarily prolonged, time frame for so doing, baring in mind the protracted delay which has already occurred. If such a response stating when compliance will occur is not obtained within 48 hours , I will escalate the repeated breaches of the act associated with this request to the ICO highlighting the serious consequences of these breaches for parliamentary scrutiny of the actions of both the executive and quangos, and that this had been communicated to you. I will also request that formal decision notices be issued against you and that the ICO compel your compliance with these legal duties via all mechanisms open to it.
I look forward to hearing from you within the next 48 hours with an update on when the full substantive response, which is very overdue, will be released.
Yours sincerely,
Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)
================================================================================
MESSAGE 8 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
30 September 2019
Delivered
--------------------------------------------------------------------------------
Dear FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
I should lastly add that although we could alter the timescale to permit a response later by agreement no such request from NHS Improvement has occurred. Indeed, no acknowledgment of our Internal Review request has yet been received. We require an assurance that a substantive response will occur as the lack of any response leaves us concerned that NHS Improvement may intend to ignore its statutory obligations. I do appreciate that the failure to acknowledge and respond may be an oversight and if this is the case kindly respond urgently confirming a response will occur and, crucially, when.
Yours sincerely,
Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)
================================================================================
MESSAGE 9 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
30 September 2019
Delivered
--------------------------------------------------------------------------------
Dear FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
Lastly we remain keen to meet with your team but this should be in addition to the disclosure of this information, which we do need as swiftly as practicable, rather than instead of it.
Yours sincerely,
Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)
================================================================================
MESSAGE 10 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
3 October 2019
Delivered
--------------------------------------------------------------------------------
Dear FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
Could I please ask that you confirm you will respond and give a date for so doing as in the absence of any acknowledgement with an undertaking to respond I will need to escalate this to the ICO. I am still willing to be somewhat flexible with the deadline, but the lack of an acknowledgment combined with being over the deadline and the fact that NHS Improvement failed to disclose the information or cite any exemption the first time around is giving me grave misgivings that NHS Improvement may intend to breach the act by failing to disclose all non exempt information. Whilst I am happy to be flexible to allow NHS Improvement time to process the information it admits it has swiftly located, if NHS Improvement is not complying I must involve the information commissioner to request that compliance be compelled and decision notices issued. I will also need to report the failure to comply to the numerous MPs, the Loan Charge All Party Parliamentary Group.
I would kindly ask that you urgently reply so that I know when a response is expected, or I can take appropriate further action should NHS Improvement intend to act in a manner which causes it to be in continuing breach of the law.
Yours sincerely,
Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)
================================================================================
MESSAGE 11 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
12 October 2019
Delivered
--------------------------------------------------------------------------------
Dear FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
I am very disappointed by NHS Improvement's failure to respond. I would highlight that it is mere days until the suggested extended deadline I offered of 16th October is met and NHS Improvement has failed to confirm that it intends to act lawfully by responding-or confirm if it wishes to take advantage of the offered extended response time.
NHS Improvement has previously confirmed it has verified the information is held, located it, and retrieved it easily in comparatively little time. This confirms the Section 12 cost limit does not apply.
NHS Improvement had highlighted that it did not feel that the time taken to consider excemption was a good use of NHS Improvement's resources. We have given representations that,in the professional view of our association and of myself, the information is vitally important to multiple Parliamentary enquires and select committees and materially affects tens of thousands of workers denied selfemployed status, and similar numbers of businesses/limited companies forced to close. We view this as vital. We appreciate that NHS Improvement not only does not care about such workers/companies, but also it spends much of its time and resources eroding our workers' pay and conditions through monopsonistic market manipulation via the framework cartels NHS Improvement licences. Thus we would not expect NHS Improvement to wish to use resources helping our workers, quite the reverse actually, nevertheless freedom of Information exists to allow ourselves and parliament to scrutinise the activities of public bodies, thus NHS Improvement's view on whether this is a good use of resources is not the relevant view, external views such as ours are those which matter.
Whilst your first reply is adequate to confirm that Section 12 is not engaged, and a close reading of the wording of your reply shows that you have not claimed it is, despite giving a possibly similar impression from the response recieved to a lay reader, indeed no exemption whatsoever justifying non disclosure was cited.
I would like to prevent unnecessary delay by Section 12 being erroneously cited in any internal review response.
****IMPORTANT**** ===> Could I specifically highlight Regulation 4(3) of the Fees Regulations - which explicitly specifies which costs can be included in deciding whether FOIA Section 12 is engaged, this does NOT include time taken to consider exemptions, and your earlier email has confirmed timeous completion of as all of the steps set out as germaine in regulation 4(3). Furthermore, ICO guidance is absolutely explicit that the time taken to consider and apply exemptions does not count for the purpose of Regulation 4(3).
I remain willing and keen to meet with your team, but this should be as a helpful addition as we need the information requested to feed into select committees/NAO/All Party Parliamentary Groups/inquiries.
Yours sincerely,
Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)
================================================================================
MESSAGE 12 [incoming]
HEADER: FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
NHS Improvement
1 November 2019
--------------------------------------------------------------------------------
Dear Dr Campbell
We apologise for the delay in processing your FOI request.
We hope to have a response sent to you by close of next week.
Yours sincerely
NHS Improvement
Follow us on: [1]Twitter | [2]LinkedIn
NHS Improvement is responsible for overseeing foundation trusts, NHS
trusts and independent providers. We offer the support these providers
need to give patients consistently safe, high quality, compassionate care
within local health systems that are financially sustainable. By holding
providers to account and, where necessary, intervening, we help the NHS to
meet its short-term challenges and secure its future.
NHS Improvement is the operational name for the organisation that brings
together Monitor, NHS Trust Development Authority, Patient Safety, the
National Reporting and Learning System, the Advancing Change team and the
Intensive Support Teams.
show quoted sections
show quoted sections
================================================================================
MESSAGE 13 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
1 November 2019
Delivered
--------------------------------------------------------------------------------
Dear FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
Thank you for your response as it sounds like you are preparing to release the information I am happy to await the information and extremely grateful for the effort in applying any relevant exemptions to it. As it now seems a response will be forthcoming I will also not escalate to the ICO at this juncture as I am sympathetic to and appreciative of the effort involved.
Could I ask specifically that if any attempt is made to cite Section 35 or 36 the specific minister of the crown whose authority is relied upon to claim the exemption and if different the person to whom this authority is delegated be identified and that any such exemption be applied as narrowly as possible. It is anticipating that such an exemption is unlikely to apply to most or all of this.
Many thanks for taking the time to process this. It is very much appreciated.
Yours sincerely,
Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)
================================================================================
MESSAGE 14 [incoming]
HEADER: FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
NHS Improvement
5 November 2019
--------------------------------------------------------------------------------
1 Attachment
Campbell Decision Letter 05.11.2019.pdf
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Dear Dr Campbell
Please accept our apologies for the delay in processing your request.
Please see the attached decision letter dated 5 November 2019.
Yours sincerely
NHS Improvement
Follow us on: [1]Twitter | [2]LinkedIn
NHS Improvement is responsible for overseeing foundation trusts, NHS
trusts and independent providers. We offer the support these providers
need to give patients consistently safe, high quality, compassionate care
within local health systems that are financially sustainable. By holding
providers to account and, where necessary, intervening, we help the NHS to
meet its short-term challenges and secure its future.
NHS Improvement is the operational name for the organisation that brings
together Monitor, NHS Trust Development Authority, Patient Safety, the
National Reporting and Learning System, the Advancing Change team and the
Intensive Support Teams.
show quoted sections
show quoted sections
================================================================================
MESSAGE 15 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
10 December 2019
Delivered
--------------------------------------------------------------------------------
Dear NHS Improvement,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request Advice and Assistance/clarification of the internal review into NHS Improvement's handling of my FOI request 'Specific keyword terms of interest' as there are inconsistencies in NHS Improvement's answers and also because further clarification is necessary to ensure that Section 42 has been appropriately claimed.
Firstly:
Could I ask that the inconsistency between NHS Improvement's claims be fully explained, and ask you to ensure that hundreds of emails have not been overlooked:
"
In respect of staff who are still employed by NHS Improvement, we have carried out an initial search AND THIS HAS RESULTED IN HUNDREDS OF EMAILS BEING RETURNED BETWEEN THE TWO LISTED ACCOUNTS. Although we have been able to identify the information in scope of your request in a relatively short amount of time, we consider that to review and redact this material appropriately would create a grossly disproportionate burden on NHS Improvement’s resources.
"
The response then went on to give a reply which appeared to make it look as if Section 12 might apply, without actually claiming it did (as it clearly did not apply given Regualtion 4(3) of the Fees Regulations). The email also gave the impression that NHS Improvement may later try to inappropriately claim Section 14 was engaged. Thankfully this was noticed and representations were given which made it abundantly clear that this was a very proportionate use of resources with strong public interest and Section 14 did not apply.
This quoted response is, however, not in keeping with the initial Internal Review response which now claims that the 'hundreds of emails' which attempted to give the impression Section 12 (and potentially with view to Section 14) were engaged have suddenly become only a single email??
Could I ask that, under your Section 14 Duty to Provide Advice and Assistance to those making requests, you clarify why hundreds of emails were reportedly initially identified and subsequently only a single email was found - surely information was not deleted? Please could the difference between these two searches be disclosed (perhaps an accidentally case sensitive search was used the second time, or the inverted commas were included when they shouldn't be?).
I am additionally concerned that it took rather a long time to locate that single email and I wish NHS Improvement to confirm the exact process it used to decide what material was within the scope of my request? I am specifically concerned that the lengthy delay by NHS Improvement may be explained by its acting outwith the scope of my initial request as written, to filter out information it has unilatterally decided I am not seeking - where what is sought is actually the full results of a search of those emails for the specified term, and by NHS Improvement's own communication 'Hundreds of Emails' were expected in response - not a single email.
Could NHS Improvement confirm why the number of emails identified has narrowed so much and explain in detail what process was used to identify only one email the second time around (an email which is coincidentally apparently subject to an exemption).
I should highlight that I have previously had to give evidence to Select Committees that both NHS Improvement and HMRC failed to disclose emails which were sought between Mark Frampton of HMRC and Martin Inness without citing any exemption, as the correspondence log between both individuals was sought simultaneously from both organisations, which then disclosed very different records with both claiming to have disclosed all information held - when one would expect these to be identical or near identical (indeed the dual requests were sought to ensure both organisations would honour their statutory duties and act with candour in disclosing all information held), so I would ask that specific attention is paid to disclosing all information within the scope of my original request (as written initially) which you in fact hold, as this has previously been a problem with responses from this department. Specifically please do not narrow my request any further than the initial request and the emails you identified the first time round without specifically asking whether I wish to do so.
Secondly:
The one email you are now claiming is held (as opposed to the hundreds identified previously) is apparently subject to an exemption. That said, I wish to clarify the nature of the information. You have stated it is 'advice' not specifically legal advice, although given it contains the words 'policy decision' it is not clear that this is necessarily legal advice. Whilst there is an undisputed strong public interest in actual legal advice not being disclosed advice on policy decisions and advice of a general nature would not be covered by Section 42. Could I ask that you specifically confirm whether this is legal advice and, if merely advice on a policy decision which happens to come from the legal department it should be disclosed (Section 42 does not apply to all communications from legal officers only specifically information held under Legal Advice Privilege and Litigation Privilege). Additionally could the date and time of this email please be disclosed.
Many thanks for taking the time to read and consider this request for Advice and Assistance. I do hope that, if some process was used to attempt to whittle down the emails considered NHS Improvement will be forthcoming in explaining what that was and we can discuss how to aid your compliance with the actual request.
A full history of my FOI request and all correspondence is available on the Internet at this address:
https://www.whatdotheyknow.com/request/s...
Yours faithfully,
Dr Colin Iain Campbell MBChB FRSPH PGDip (Law)
================================================================================
MESSAGE 16 [incoming]
HEADER: FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
NHS Improvement
12 December 2019
--------------------------------------------------------------------------------
Dear Dr Campbell,
We acknowledge receipt of your email dated 10 December 2019 asking for an
internal review.
This internal review will be considered as set out in NHS Improvement’s
decision letter. Accordingly, we aim to write to confirm the outcome of
that review within 20 working days of receipt of your email. If for any
reason we are unable to achieve this, we shall inform you of any expected
delay.
Yours sincerely,
NHS Improvement
Follow us on: [1]Twitter | [2]LinkedIn
NHS Improvement is responsible for overseeing foundation trusts, NHS
trusts and independent providers. We offer the support these providers
need to give patients consistently safe, high quality, compassionate care
within local health systems that are financially sustainable. By holding
providers to account and, where necessary, intervening, we help the NHS to
meet its short-term challenges and secure its future.
NHS Improvement is the operational name for the organisation that brings
together Monitor, NHS Trust Development Authority, Patient Safety, the
National Reporting and Learning System, the Advancing Change team and the
Intensive Support Teams.
show quoted sections
show quoted sections
================================================================================
MESSAGE 17 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
6 January 2020
Delivered
--------------------------------------------------------------------------------
Dear FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
Happy New Year to the FOI team.
Just to correct a minor typo in my last communication - it should read under your Section *16* Duty to Provide Advice and Assistance, 14 was a typo here ( other references to section 14 were as intended).
Please note that whilst I hope this may prove useful as you have not sought clarification, regardless of whether clarification has been provided to you, the timeline for a response will remain unaffected by this communication.
If you are intending releasing the hundreds of emails you probably identified initially as within scope and require more time to apply exemptions to them could this please be explicitly stated in a response before the reply deadline. You will find me most sympathetic to accommodating such a request, although I do note that unfair advantage may previously have been taken of such latitude in the delay prior to the previous response.
I look forward to your response.
Yours sincerely,
Dr Colin Iain Campbell MBChB FRSPH
================================================================================
MESSAGE 18 [incoming]
HEADER: FOI (NHS ENGLAND & NHS IMPROVEMENT - T1520),
NHS Improvement
10 January 2020
--------------------------------------------------------------------------------
1 Attachment
Campbell 10.01.2020 response.pdf
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Dear Dr Campbell
Please find attached decision letter dated 10.01.2020
Kind regards
NHS Improvement
Follow us on: Twitter | LinkedIn
NHS Improvement is responsible for overseeing foundation trusts, NHS
trusts and independent providers. We offer the support these providers
need to give patients consistently safe, high quality, compassionate care
within local health systems that are financially sustainable. By holding
providers to account and, where necessary, intervening, we help the NHS to
meet its short-term challenges and secure its future.
NHS Improvement is the operational name for the organisation that brings
together Monitor, NHS Trust Development Authority, Patient Safety, the
National Reporting and Learning System, the Advancing Change team and the
Intensive Support Teams.
_________________________________________________________________________________
show quoted sections
================================================================================
ATTACHMENT TEXT EXTRACTION / OCR
================================================================================
--------------------------------------------------------------------------------
ATTACHMENT: Campbell_10.01.2020_response.pdf
TEXT_FILE: Campbell_10.01.2020_response.pdf.txt
METHOD: pdf_native
OCR_USED: False
PAGES: 4
--------------------------------------------------------------------------------
--- PDF page 1 ---
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
10.01.2020
Dr Colin Iain Campbell
By email
request-491966-fe84aae6@whatdotheyknow.com
Dear Dr Campbell,
Request under the Freedom of Information Act 2000 (the “FOI Act”)
I refer to your email of 10 December 2019 in which you requested an internal review of NHS
Improvement’s decision of 5 November 2019. Your original request is set out at Annex 1 of
this letter.
Your request for an internal review was, in summary, as follows:
“I am writing to request Advice and Assistance/clarification of the internal review into NHS
Improvement's handling of my FOI request 'Specific keyword terms of interest' as there are
inconsistencies in NHS Improvement's answers and also because further clarification is
necessary to ensure that Section 42 has been appropriately claimed.”
Decision
We have now completed an internal review of your request and confirm that we have decided
to uphold the original decision. We have set out our reasons below.
Your original request asked for specific search terms to be used to search the inboxes of three
individuals. As previously explained, one of those individuals (Martin Innes, former Senior
Agency Data and Intelligence Lead) left NHS Improvement more than 6 months prior to your
original request and given the passage of time it is no longer possible to search this NHS mail
account.
Following correspondence with you in August 2019 when we asked you to refine your request,
we proceeded to process your request by searching the inboxes of Martin Innes’ successor
and his immediate supervisor. We discovered that our initial search had been carried out
incorrectly and informed you in this respect. Specifically, the initial search used incorrect
search terms and had erroneously identified several hundred emails as being within the scope
of your request. When a refined search was undertaken of this account using the correct
search terms, this produced no results within scope of your request.
A separate search of Martin Innes’ successor’s inbox identified one email within the scope of
your original request. We withheld that information under section 42 of the FOI Act in our
original response and, following internal review, have decided to maintain that position.
Wellington House
133-155 Waterloo Road
London SE1 8UG
T: 020 3747 0000
E: nhsi.enquiries@nhs.net
W: improvement.nhs.uk
--- PDF page 2 ---
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
However, pursuant to our duty under section 16 to provide advice and assistance regarding
your original request, we refer you to the guidance that NHS Improvement issued in May 2017
relating to IR35 and the agency rules.
Section 42
Section 42(1) of the FOI Act provides that information in respect of which a claim to legal
professional privilege could be maintained in legal proceedings is exempt information.
Legal professional privilege includes advice privilege.
The email in scope is between a lawyer at NHS Improvement and Martin Innes. In our view,
the information included in that email constitutes legal advice.
Section 42 is a qualified exemption requiring application of the public interest test. We have
considered whether in this case the public interest in maintaining the exemption outweighs the
public interest in disclosure. We accept that there is a public interest in disclosing matters
relating to IR35, but we consider that the public interest is addressed by our published
guidance on this issue and the information in the email we are withholding does not relate to
IR35 policy. On balance, we therefore consider that the public interest in maintaining this
exemption outweighs any public interest in disclosing the content because it is essential to
safeguard openness in communications between clients and their lawyers to ensure access
to full and frank legal advice. Our clients trust our lawyers to impart legal advice which is
comprehensive, accurate, and reliable. If there was a threat of disclosure, this would be likely
to compromise the trust placed in our lawyers and the process around the provision of legal
advice more generally, which in turn may mean that the advice itself might be compromised
in terms of quality and reliability.
Review rights
If you are not content with the outcome of the internal review, you have the right to apply
directly to the Information Commissioner for a decision. The Information Commissioner can
be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF.
Please note that this letter will shortly be published on our website. This is because information
disclosed in accordance with the FOI Act is disclosed to the public at large. We will, of course,
remove your personal information (e.g. your name and contact details) from the version of the
letter published on our website to protect your personal information from general disclosure.
Yours sincerely,
NHS Improvement
--- PDF page 3 ---
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
Annex 1
I would like to make a freedom of information act request under the Freedom of Information
Act 2000 for:
All information held following a search of the email inboxes and sent messages of:
1) former Senior Agency Data and Intelligence Lead Martin Innes; and
2) his successor in that job; and
3) Martin Innes's (and, if different, his successor's) immediate supervisor during this period.
over the period February 2017 until November 2018 inclusive for BOTH of the two terms
listed in each of the following numbered requests (in the same email including in the email
conversation reproduced before an email which has been replied to or forwarded):
1)'IR35' AND 'policy decision'
2)'off payroll' AND 'policy decision'
3)'off-payroll' AND 'policy decision'
4)'blanket' AND 'policy decision'
Regardless of capitalisation (i.e. could the search please not be case sensitive) and, for
clarity, the inverted comas themselves are not part of the string which is sought . Any emails
found in multiple entries need only be reproduced once (or can be reproduced multiple times
if this makes the job easier at NHS Improvement's side).
Please search inboxes, sent messages, and, if there are emails in them, the drafts and
deleted emails folder (these are still held). Attachments to emails identified are to be
considered within the scope of the request and should also be disclosed, any email
discussion/forwarded emails contained beneath messages identified should similarly be
considered within the scope even if those replies do not include the keyword terms
themselves (and similarly for emails identified because they are reply to one of the key
phrases identified and the key phrase is in the message history beneath the reply).
The to, from, subject, and date/time information of the emails identified are to be considered
within the scope of the request - as is as much of the email as can be disclosed - eg the
domain name (part after @) of the email should be disclosed in all instances.
Searching for emails which contain both terms of interest within the same email should be
simple and your IT department will be able to direct you as to how to do this very easily, but
with view to providing assistance to your FOI team in complying, and making the search
simpler for you, you may find this link useful in explaining how to search for two
words/phrases simultaneously https://www.groovypost.com/howto/add-fire-tv-apps-from-
browser/ if this is unhelpful your IT team will be able to achieve it on most versions and
packages.
This search if obviously different to any preceding ones and cannot be conducted on publicly
available information in the case of point 1 as redactions on NHS Improvement's part may
have excluded the words 'policy decision' and, even if no more information itself were
disclosed the knowledge that the words 'policy decision' were contained within the email
would provide significant new information of interest to us.
I would ask that ALL non-exempt information is released please (and could this include the
words 'policy decision' where they are contained in any redacted sections as outwith context
they cannot be sensitive even if the rest of the sentence were caught by an exemption).
Could all qualified exemptions please be fully explained and justified with reference to the
public interest and, where relevant, prejudice tests. Should it be alleged that any of the
information is covered by Section 36 please name the specific Minister of the Crown acting
as a 'Qualified Person' or the named Minister of the Crown upon whose authority under
Section 36(5)(o)(ii) or (iii) the 'Qualified Person' is acting (and additionally identify the
qualified person, if different). Please also disclose which test of reasonableness was
employed, and the full reasoning behind it.
Where information is alleged to be commercially sensitive please disclose the exact
subsection of the act relied upon and the full reasoning of the public interest tests with
reference to the included public interest representation. Where it is alleged that to disclose
--- PDF page 4 ---
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
information would constitute actionable breach of confidence please remember that it is a
requirement not just that action could be brought for breach of confidence but that, if
brought, it would succeed at court, It must be remembered that such court cases consider
the public interest. Where it is asserted that actionable breach of confidence would be a valid
reason for non-disclosure please disclose the signed and dated non-disclosure agreement
preventing disclosure, and disclose all aspects of any related email it is possible to disclose -
including subjects, headers, as much of the email address as can be disclosed etc.
When redacting emails it is reminded that the Section 40 exemption for personally
identifiable information is not relevant to senior civil servants/high office holders within NHS
Improvement or other public bodies/quangos with whom NHS improvement is
corresponding, and, whilst it may be to more junior individuals, that the domain name (the bit
that follows the @) of an email address is never personal identifying information as it does
not identify the sender (the username comes before the @), and should therefore be
disclosed.
Having tested on our side, it has taken two minutes per email address to search to see if two
keyword strings are identified in the same email in an inbox, sent message box, and drafts
folder (containing thousands of emails). We therefore estimate that complying with the
request should take around 24 minutes to complete all the required searches (4 searches of
2 minutes x up to 3 people), and thus the time-limit should not be engaged.
PUBLIC INTEREST REPRESENTATION:
There is an overwhelming public interest in the tens of thousands of health-workers knowing
what has occurred here as the caselaw is increasingly suggesting what we have suspected
all along - that many, many, public sector workers are being forced into workers-rights-less
false employment (almost invariably without individual assessments) following the public
sector IR35 reforms in April 2017. The fact that four times out of the five times where a
doctor working in a hospital has had their employment status tested in the court the doctor
has been found to be genuinely self-employed casts significant doubt upon the widespread
blankets occurring following HMRC's infamous webinar with NHS trusts. We are keen to
know more about how this situation has come about.
--------------------------------------------------------------------------------
ATTACHMENT: Campbell_Decision_Letter_05.11.2019.pdf
TEXT_FILE: Campbell_Decision_Letter_05.11.2019.pdf.txt
METHOD: pdf_native
OCR_USED: False
PAGES: 6
--------------------------------------------------------------------------------
--- PDF page 1 ---
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
5 November 2019
Colin Iain Campbell
By email
request-591189-81370ac4@whatdotheyknow.com
Dear Dr Campbell
Request under the Freedom of Information Act 2000 (the “FOI Act”)
We refer to your email of 20 July 2019 in which you requested information under the FOI Act
from NHS Improvement. Since 1 April 2016, Monitor and the NHS Trust Development
Authority have been operating as an integrated organisation known as NHS Improvement.
For the purposes of this decision, NHS Improvement means Monitor and the TDA.
Your request
The full terms of your request has been reproduced in annex 1.
NHS Improvement wrote to you on 14 August 2019 requesting you to refine your queries as
initial searches resulted in hundreds of emails being identified. At the time, we considered
that to review and redact this material would create a grossly disproportionate burden on
NHS Improvement’s resources.
You responded on 16 August 2019 stating you wished for NHS Improvement to continue
processing your original request and provided reasons why we should continue processing
your request.
Upon further review, it came to our attention that our original searches were not carried out
correctly. In light of this development, NHS Improvement has proceeded to process your
request.
Decision
NHS Improvement holds some of the information you have requested and has decided to
withhold all of the information that it holds under sections 40 and 42 of the FOI Act.
Information held by the former Senior Agency Data and Intelligence Lead
As explained in our email to you dated 14 August 2019, with regard to former members of
staff who have now left NHS Improvement, we are only able to access email accounts for
Wellington House
133-155 Waterloo Road
London SE1 8UG
T: 020 3747 0000
E: nhsi.enquiries@nhs.net
W: improvement.nhs.uk
--- PDF page 2 ---
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
the last six months. NHS Digital owns these records and its policy is to keep full emails for
the last 180 days only. Therefore we are not able to conduct any searches into the former
Senior Agency Data and Intelligence Lead’s email mailbox as he left NHS Improvement
more than six months prior to receiving your FOI request.
Information held by his successor in that job
No information was returned using the search terms outlined in your request.
Information held by his immediate supervisor during this period
Only one email was returned using the search terms: “IR35” and “policy decision” within the
time period you requested. No information was held on any of the other keyword searches.
In any event, whilst the email contains the words “IR35” and “policy decision”, it has no
relevance on IR35 policy making or decisions. The material we hold is an email exchange
between NHS Improvement’s Agency Intelligence team and NHS Improvement’s in house
lawyers which we consider is exempt under sections 42 and 40 of the FOI Act.
Section 42 – legal professional privilege
Section 42(1) of the FOI Act states:
(1) Information in respect of which a claim to legal professional privilege or, in Scotland, to
confidentiality of communications could be maintained in legal proceedings is exempt
information.
The exemption is engaged as the email contains advice provided from our in house legal
team which is subject to legal privilege. Section 42 is subject to the public interest test.
Public Interest test
NHS Improvement’s view is that, on balance, the public interest in maintaining the exemption
outweighs the public interest in disclosure. In considering the balance, we have considered
the public interest in transparency and openness in relation to decisions by public bodies,
particularly decisions affecting the NHS.
We have however also considered the inherent public interest in the importance of the
principle behind legal professional privilege. That is to safeguard openness in all
communications between the client and lawyer to ensure access to full and frank legal
advice, which in turn is fundamental to the administration of justice.
Section 40 – personal information
Section 40(2) states that requested information is exempt from disclosure if the first or the
second condition at section 40(3A)(a) of the FOI Act is satisfied.
--- PDF page 3 ---
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
We consider that names of junior staff and direct contact details are exempt from disclosure
under section 40(2) of the FOI Act. This is on the grounds that they amounts to personal
data and the first condition under section 40(3A)(a) is satisfied, namely that disclosure would
amount to a breach of the first data protection principle (personal data should be processed
lawfully, fairly and in a transparent manner) as the individuals concerned would have a
reasonable expectation that these particular items of personal information would not be
disclosed into the public domain. Section 40 is an absolute exemption and consideration of
the public interest test in disclosure is not required.
Review rights
If you consider that your request for information has not been properly handled or if you are
otherwise dissatisfied with the outcome of your request, you can try to resolve this informally
with the person who dealt with your request. If you remain dissatisfied, you may seek an
internal review within NHS Improvement of the issue or the decision. A senior member of
NHS Improvement’s staff, who has not previously been involved with your request, will
undertake that review.
If you are dissatisfied with the outcome of any internal review, you may complain to the
Information Commissioner for a decision on whether your request for information has been
dealt with in accordance with the FOI Act.
A request for an internal review should be submitted in writing to FOI Request Reviews,
NHS Improvement, Wellington House, 133-155 Waterloo Road, London SE1 8UG or by
email to nhsi.foi@nhs.net.
Publication
Please note that this letter will shortly be published on our website. This is because
information disclosed in accordance with the FOI Act is disclosed to the public at large. We
will, of course, remove your personal information (e.g. your name and contact details) from
the version of the letter published on our website to protect your personal information from
general disclosure.
Yours sincerely,
NHS Improvement
--- PDF page 4 ---
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
Annex 1 – FOI request
I would like to make a freedom of information act request under the Freedom of Information
Act 2000 for:
All information held following a search of the email inboxes and sent messages of:
1) former Senior Agency Data and Intelligence Lead Martin Innes; and
2) his successor in that job; and
3) Martin Innes's (and, if different, his successor's) immediate supervisor during this period.
over the period February 2017 until November 2018 inclusive for BOTH of the two terms
listed in each of the following numbered requests (in the same email including in the email
conversation reproduced before an email which has been replied to or forwarded):
1)'IR35' AND 'policy decision'
2)'off payroll' AND 'policy decision'
3)'off-payroll' AND 'policy decision'
4)'blanket' AND 'policy decision'
Regardless of capitalisation (i.e. could the search please not be case sensitive) and, for
clarity, the inverted comas themselves are not part of the string which is sought . Any emails
found in multiple entries need only be reproduced once (or can be reproduced multiple times
if this makes the job easier at NHS Improvement's side).
Please search inboxes, sent messages, and, if there are emails in them, the drafts and
deleted emails folder (these are still held). Attachments to emails identified are to be
considered within the scope of the request and should also be disclosed, any email
discussion/forwarded emails contained beneath messages identified should similarly be
considered within the scope even if those replies do not include the keyword terms
themselves (and similarly for emails identified because they are reply to one of the key
phrases identified and the key phrase is in the message history beneath the reply).
The to, from, subject, and date/time information of the emails identified are to be considered
within the scope of the request - as is as much of the email as can be disclosed - eg the
domain name (part after @) of the email should be disclosed in all instances.
Searching for emails which contain both terms of interest within the same email should be
simple and your IT department will be able to direct you as to how to do this very easily, but
with view to providing assistance to your FOI team in complying, and making the search
simpler for you, you may find this link useful in explaining how to search for two
words/phrases
simultaneously
https://www.groovypost.com/howto/add-fire-tv-apps-from-
browser/ if this is unhelpful your IT team will be able to achieve it on most versions and
packages.
This search if obviously different to any preceding ones and cannot be conducted on publicly
available information in the case of point 1 as redactions on NHS Improvement's part may
have excluded the words 'policy decision' and, even if no more information itself were
--- PDF page 5 ---
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
disclosed the knowledge that the words 'policy decision' were contained within the email
would provide significant new information of interest to us.
I would ask that ALL non-exempt information is released please (and could this include the
words 'policy decision' where they are contained in any redacted sections as outwith context
they cannot be sensitive even if the rest of the sentence were caught by an exemption).
Could all qualified exemptions please be fully explained and justified with reference to the
public interest and, where relevant, prejudice tests. Should it be alleged that any of the
information is covered by Section 36 please name the specific Minister of the Crown acting
as a 'Qualified Person' or the named Minister of the Crown upon whose authority under
Section 36(5)(o)(ii) or (iii) the 'Qualified Person' is acting (and additionally identify the
qualified person, if different). Please also disclose which test of reasonableness was
employed, and the full reasoning behind it.
Where information is alleged to be commercially sensitive please disclose the exact
subsection of the act relied upon and the full reasoning of the public interest tests with
reference to the included public interest representation. Where it is alleged that to disclose
information would constitute actionable breach of confidence please remember that it is a
requirement not just that action could be brought for breach of confidence but that, if
brought, it would succeed at court, It must be remembered that such court cases consider
the public interest. Where it is asserted that actionable breach of confidence would be a
valid reason for non-disclosure please disclose the signed and dated non-disclosure
agreement preventing disclosure, and disclose all aspects of any related email it is possible
to disclose - including subjects, headers, as much of the email address as can be disclosed
etc.
When redacting emails it is reminded that the Section 40 exemption for personally
identifiable information is not relevant to senior civil servants/high office holders within NHS
Improvement or other public bodies/quangos with whom NHS improvement is
corresponding, and, whilst it may be to more junior individuals, that the domain name (the bit
that follows the @) of an email address is never personal identifying information as it does
not identify the sender (the username comes before the @), and should therefore be
disclosed.
Having tested on our side, it has taken two minutes per email address to search to see if two
keyword strings are identified in the same email in an inbox, sent message box, and drafts
folder (containing thousands of emails). We therefore estimate that complying with the
request should take around 24 minutes to complete all the required searches (4 searches of
2 minutes x up to 3 people), and thus the time-limit should not be engaged.
PUBLIC INTEREST REPRESENTATION:
There is an overwhelming public interest in the tens of thousands of health-workers knowing
what has occurred here as the caselaw is increasingly suggesting what we have suspected
all along - that many, many, public sector workers are being forced into workers-rights-less
false employment (almost invariably without individual assessments) following the public
sector IR35 reforms in April 2017. The fact that four times out of the five times where a
doctor working in a hospital has had their employment status tested in the court the doctor
has been found to be genuinely self-employed casts significant doubt upon the widespread
--- PDF page 6 ---
NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority,
Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams.
blankets occurring following HMRC's infamous webinar with NHS trusts. We are keen to
know more about how this situation has come about.