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Information Commissioner intervenes in doctor's fight for publication of Cygnus Report

The Information Commissioner's Office has ordered the DHSC to respond to an NHS doctor's Freedom of Information request.

Posted on 11 October 2020

The Information Commissioner's Office has ordered the Department of Health and Social Care (DHSC) to respond to an NHS doctor's Freedom of Information request for the publication of the Cygnus Report.

The Commissioner reminded the DHSC that the total time for a Freedom of Information should in no case exceed 40 working days and ordered the Department to respond to Dr Moosa Qureshi within 20 days.
It is now six months since Dr Qureshi asked health secretary, Matt Hancock to release the report into a 2016 NHS viral pandemic simulation exercise.
Since then a judge has refused Dr Qureshi permission for judicial review into the health secretary’s refusal to publish the results of the exercise, partly on the basis that he believed that a response to Dr Qureshi’s Freedom of Information request should have already been received. Dr Qureshi is appealing that decision and the High Court will hear his case in November.
The DHSC is defending the judicial review on the basis that a Freedom of Information request was the appropriate route.
However, the DHSC has repeatedly delayed giving a response to the Freedom of Information request, stating that it needs more time to conduct the public interest balancing test under section 35 FOIA, which requires public authorities weigh the public interest in disclosing requested information.
Following the latest rebuff by the DHSC in mid September, Dr Qureshi’s lawyers, Leigh Day solicitors, wrote to the Information Commissioner to complain about the delay, stating:
“The DHSC has engaged in a tactic of evasion and delay and its conduct entirely undermined the purpose of the FOIA regime. 
“Perhaps conscious of the political ramifications that disclosure of the Cygnus Report might have whilst the pandemic rages on, the DHSC is clearly playing for time. As a result, it is preventing Dr Qureshi either receiving copies of the Cygnus Report or exercising his legal rights to challenge any refusal to disclose the same. Its actions are a clear and obvious breach of the statutory requirement under s. 10 FOIA to respond within a reasonable period of time.”
Now the Information Commissioner’s Office has written to the DHSC with a firm intervention, saying:
“The Information Commissioner considers that public authorities should aim to respond fully to all requests within 20 working days. In cases where the public interest considerations are exceptionally complex it may be reasonable to take longer but, in the Commissioner’s view, in no case should the total time exceed 40 working days.
“You should now provide a response to the complainant’s request within 20 working days of receipt of this email. You should either provide the information or issue a refusal notice in accordance with the requirements of section 17 of the FOIA.”
Dr Moosa Qureshi said:
“I’m grateful that the ICO has taken a robust position regarding the Government’s legal obligations. The role of regulatory bodies and our judiciary is incredibly important when a small cabal of politicians and advisers appear to be ruling (erratically) by decree.
“The Government now needs to adopt a grown-up position, act in the national interest, and recognise that transparency, open data and a collaborative approach are imperative during a national healthcare crisis.”
Leigh Day partner Tessa Gregory added:
“The Government has committed to acting with maximum possible transparency through the pandemic yet the Department of Health and Social Care has spent six months fighting and evading our client’s requests for publication of the Cygnus Report.
“While the COVID-19 pandemic rages, costing lives, the lessons that the NHS and others learned during its 2016 pandemic simulation exercise remain locked away from public scrutiny. That cannot be right.
“Following this intervention by the Information Commissioner our client is looking forward to a substantive response to his Freedom of Information request.”

Tessa Gregory
Corporate accountability Human rights Judicial review Planning Wildlife

Tessa Gregory

Tessa is an experienced litigator who specialises in international and domestic human rights law cases

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