EA/2023/0448 - [2025] UKFTT 00077 (GRC)

The first part of the test in section 41 FOIA is whether the information was obtained by the public authority from any other person. The information in the report was obtained through interviews with witnesses, conducted by the Public Authority. The Appellant does not seek to argue that the requirement in section 41(1)(a) FOIA is not met.

We then considered whether the information was imparted in circumstances conferring an obligation of confidence. The Trust’s investigators made a commitment to everyone that they spoke to during the investigation that their personal information would be kept confidential. Witnesses were informed that they were referred to in the report by a witness identification key, not by name, and that the witness identification key was only known to four individuals and would not be shared further.

In addition, the investigation was conducted under the ‘Freedom to Speak Up policy for the NHS’. The Trust indicated that, as a consequence, all witnesses who participated in the investigation had the right to confidentiality unless there is a requirement to disclose by law or court order. The policy emphasises that the most important aspect of speaking up is the information provided, not the identity of the provider of the information, and that people have the opportunity to speak up in confidence.

We are satisfied that the witnesses who spoke to the investigation had been given an assurance that their personal information would be kept confidential.

The Trust submit in their response that disclosure of the information would allow others, particularly employees within the Trust, to deduce the identify of some or all of the witnesses in the report through their knowledge of the investigation and the content and context of the narrative in the report. We recognise that an undertaking that the identity of a witness will be kept confidential does not automatically also mean that the substance of their testimony will be kept confidential. However, the nature of the testimony provided in this case is such that no real distinction can be drawn. Similarly, the nature of the testimony is such that we cannot envisage additional steps that could be taken to further anonymise the information, and nor can we identify discrete parts of the report that could be disclosed without breaching the confidentiality undertaking. We agree with the submissions of the Trust that disclosure of the information would therefore breach the guarantee of anonymity that was given to the witnesses.

We also find that disclosure in these circumstances would be to the detriment of the providers of the information, namely the witnesses, given the loss of privacy and the breach of the confidentiality undertaking that had been given to them.

The final consideration is whether disclosure would be an actionable breach of confidence. We have taken into account the fact that this is not the application of the usual public interest test to a qualified exemption. We are considering if the public interest in disclosure is sufficient to outweigh the public interest in maintaining the confidence.

We take note of the inherent weight in the wider public interest in maintaining confidences, particularly in the context of an investigation arising out of whistleblowing allegations. It is imperative that witnesses are confident that they can speak frankly during an investigation without concern about personal repercussions. If they cannot rely on assurances of confidentiality, this confidence is likely to be eroded and one of the fundamental elements of a whistleblowing policy will be undermined. We also take note of the public interest in ensuring that Public Authorities are able to investigate cases of this nature comprehensively.

We accept that there is a public interest in transparency in the workings of NHS Trusts, particularly where issues of public safety are concerned. We note that, in his Notice of Appeal, the Appellant refers to concerns over the Trusts’ ‘deaths scandal’ and that “it has been agreed in a review by NHS England, that the NEAS had doctored reports and concealed evidence from families and the coroner in instances whereby patients died”. However, as can be seen from the recommendations (which have already been disclosed) and the additional information that is subject to the substituted Disclosure Notice, the report that is the subject of the Request does not directly address the issue of patient safety and does not illuminate on the substantive concerns raised by the Appellant. Whilst there is some public interest in transparency regarding concerns relating to the internal culture and management of the Trust, we do not find that there is a sufficient public interest in disclosure under FOIA to provide a defence to a breach of confidence claim.

The tribunal therefore concludes that the public interest in maintaining confidentiality is not outweighed by the public interest in disclosure of the requested information, and that the Trust was entitled to rely on section 41 FOIA to withhold the disputed information. We reach this finding in relation to the information sought at part two (conclusions or findings of the report) and part six (full redacted copy of the report) of the Request.

We find two limited exceptions to the conclusions outlined in paragraphs 29 to 38 above. Firstly, we find that paragraph 2 of the ‘recommendations’ at page 187 of the report, does not constitute information that was provided in confidence for the purposes of section 41 FOIA. The disclosure of the information contained in paragraph 2 to the public would not constitute an actionable breach of confidence. We reach the same conclusion in relation to the information contained at pages 191-192 of the report under the heading ‘Other Areas for Consideration’, save for one sentence contained in paragraph 8 on page 191. The tribunal concludes that the exemption under section 41 FOIA applies to one sentence on page 191 as the information contained therein is intrinsically linked to the information contained in the body of the report, and we are satisfied that disclosure of that sentence would constitute an actionable breach of confidence for the reasons outlined above.

The Tribunal has also considered whether the exemption as section 40(2) FOIA is engaged in relation to the information contained in paragraph 2 on page 187 of the report and in pages 191-192 of the report. We are satisfied that it is not engaged as the information does not contain personal data within the meaning of that section.

The Tribunal allows the appeal in part for the reasons explained above.