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Whitehall lost every one of its arguments to try to stop public scrutiny of the decision-making process that led to MMR’s introduction in the UK.
An emphatic ruling by the information commiss-ioner came after the FOIA Centre, acting on behalf of a parent of one child allegedly seriously harmed by MMR, made requests under the freedom of information act for the minutes of three Whitehall committees that decided on introducing measles-mumps-rubella triple vaccination.
In response to our FOIA requests, the department of health (DoH) disclosed redacted versions of the minutes.
Although the officials and experts who attended the Whitehall meetings were identified in the minutes, the DoH made redactions so that specific comments could not be attributed to particular committee members.
It justified this by saying: “It was never the expect-ation of the attendees that their specific comments would be released to the public,” adding, “disclosure would be consequently unfair” to committee members.
The DoH also redacted the names of specific pharmaceutical companies, their research and products, saying that disclosure “would be likely to prejudice the position of the companies discussed in a competitive environment by revealing market-sensitive information or information of potential usefulness to their competitors.”
We asked the DoH to review the redactions. After long delays, the department upheld the redactions for the minutes relating to two committees.
It supplemented its justification for not disclosing the identities of committee members making specific comments by saying that it would inhibit “the free and frank exchange of views for the purposes of deliberation” or “the free and frank provision of advice”.
The information commissioner, Richard Thomas, who acts as the FOIA watchdog in the UK, reveals in his ruling on the case that an unidentified health minister made this decision.
The DoH told the commissioner that the minister based her decision on her opinion that “members would have not taken part in these meetings or contributed as they did if they had believed that their comments would be publicly attributable.
“Members could be put into a position of being vulnerable to litigation if comments that they made in confidence were released under FOIA.”
The DoH also claimed in its review that such disclosure was prevented by a “legally enforceable obligation of confidence”.
Despite the department’s failure to complete its review for the minutes relating to the third committee, we formally complained to the information commissioner about all the redactions and the delay in completing the internal reviews.
The complaint prompted the DoH to complete the third review, upholding all the redactions.
The information commissioner rejects the DoH’s attempt to use five separate exemptions to redact details from the minutes. He says that three of them were not even engaged, while the public interest in disclosure outweighed the public interest in maintaining the exemptions for the other two.
The department had also failed to comply with FOIA in its responses to the requests and because of excessive delay.
The ruling says: “The commissioner notes that the DoH has been unable to inform him which redaction in the minutes has been made under which exemption.”
“He notes the generic nature of the DoH’s argu-ments, and in particular the lack of any specific argument in relation to any specific piece of information where any specific issues of particular sensitivity were discussed.”
The commissioner “believes that the public would expect that a DoH committee, dealing with issues relating to public health, would discuss these topics in a full and frank manner.”
“The commissioner is not persuaded that the dis-closure of the withheld information would have the severe inhibitory effect… as argued by the DoH.”
“In this case, he believes that issues regarding vaccination are particularly in the public eye, especially regarding the use of the combined MMR vaccine.”
“Therefore, the commissioner believes that this topic is an on-going significant issue of public debate, and that the disclosure of this information would go towards increasing the public understanding of the development of the government’s policy on this issue, and would allow a more informed debate on that policy.
“He believes that some of the controversy sur-rounding national immunisation policy has been fed by a perceived lack of transparency in the decision-making process which fed into the policy.”
“He believes that knowing who said what, and whose opinions were taken into account is… an important factor towards openness, accountability and transparency.”
This conclusion was despite a determined effort by the DoH to maintain secrecy, even introducing an additional reason for non-disclosure. It told the commissioner: “Given the vehement views on vaccination held by some members of the community and the candid comments on this issue by some [committee] members and other attendees, we consider that committee members’ personal safety… could be jeopardised by disclosure of comments in an attributable form.
“Some individuals involved in the committee meet-ings have already experienced threats to their personal safety over their views on immunisation.”
When pressed by the commissioner, the DoH clarified that it had spoken to one committee member, and this person had “received threatening material both at work and at home because of their [sic] work in the field of vaccines.”
However, Thomas dismisses the claim, saying that the DoH had failed to say anything about the risk of any such danger. The decision adds: “The commissioner notes that during its correspondence with him on this case, the DoH has stated that it believes there were almost 100 individuals involved in the three committees… The DoH has not provided any evidence of threats towards any other of these individuals.”
The commissioner again criticised the “generic nature” of what he describes as the department’s “blanket approach” in using this point to justify redacting every name to which a comment would be attributable.
“He has not been provided with any compelling evidence by the DoH that the disclosure of the withheld information would, or would be likely to, endanger the physical or mental health, or safety, of any individual.
“The DoH has referred to the experiences of one individual,” who “had previously received threatening material both at work and at home because of their [sic] work in the field of vaccines.”
“The commissioner notes that that individual is senior in their [sic] field. Whilst the commissioner is not under-estimating how upsetting such threats could be, given the generic arguments advanced by the DoH, he has not been provided with any evidence that the disclosure of the information would be likely to lead to an increase in the likelihood of such endangerment occurring.”
On the claim of disclosure prejudicing commercial interests, the decision says: “The commissioner accepts that if information which was truly commercially sensitive was discussed – such as details of the manufacturing process or potential criticisms of a currently used drug – disclosure of this kind of information would have the potential to prejudice the commercial interests of the company which produce that drug.
“However, the DoH has not provided any specific arguments relating to specific pieces of information, and has instead relied on a blanket approach to the use of this exemption.”
The commissioner was “not persuaded that the disclosure of withheld information would, or would be likely to, prejudice the commercial interests of the pharmaceutical companies concerned.”
The investigation into the FOIA Centre's complaint took so long in part because of delays by the department in responding to the information commissioner’s enquiries and requests for information.
Thomas says in the decision: “In March 2008, the commissioner issued the DoH with a practice recommendation which identified various problems with the department’s handling of requests and with subsequent appeals to this office.
“The recommendation included a reference to the timeliness with which the authority responded to his case officer’s enquiries.
“The commissioner is concerned to note that in this case some of the delays in obtaining the department’s reasons for applying particular exemptions post-date his practice recommendation.
“The commissioner is also concerned to note that the department sought to rely on rather generic arguments to withhold information, and could not easily identify which exemption applied to the pieces of information it had sought to redact.
“The application of exemptions in this way is con-sistent with the poor practice highlighted in the commissioner’s practice recommendation of March 2008.”
Documents on MMR were obtained by the FOIA Centre acting on behalf of one of the parents of a child in the group litigation against various pharmaceutical companies.