Risk registers – fair game for disclosure under FOIA?

Geraldine Swanton

A request was submitted to the Dept of Health (DoH) for a copy of risk registers/risk assessments relating to government plans regarding reform of the NHS and the Health and Social Care Bill.  As well as identifying potential risks, the risk registers also contained information on the likelihood of each risk occurring, the impact of the risks and the DoH’s plans to mitigate them.  The DoH refused the request in reliance on the exemption for formulation of government policy (FOIA s35(1)) because that risk information was used to inform its NHS policy.  While the Information Commissioner (IC) conceded that the exemption was engaged, he nevertheless decided that the public interest required disclosure.  The DoH appealed unsuccessfully to the First-Tier Tribunal, but the judgment has not yet been published. Below therefore is a summary of the IC’s decision which may give some insight in the interim.

The IC concluded that there is a strong public interest in disclosing the information, given the significant change to the structure of the health service the government’s policies will bring about.  There had also been extensive public debate on the issue of NHS reform. Disclosure of the requested information would significantly aid public understanding of the risks relating to the proposed reforms and provide increased transparency in respect of the government’s policy. The IC rejected the DoH’s argument that there was sufficient information already in the public domain to fulfill the public interest.

The DoH further claimed that it would be less open in relation to risk in future if forced to disclose the information. The IC accepted that disclosure would have some inhibiting effect, though he did not believe it would affect the detail and candour of future risk registers of this nature, which as a requirement of good governance, must be completed with full frankness.  He also noted that the content of the register did not reveal detail of the policy discussions in the same way as other policy documents e.g. notes, emails, draft papers.  In the final analysis, the IC attributed significant weight to the increased transparency relating to the government’s reforms which disclosure would achieve.

This decision must be considered very much in the context of the facts i.e. the development of government policy, for which it is receiving the opprobrium of many of those professionals to whom it will apply.   While it may be alarmist to conclude that as a result of this decision, risk registers are now potentially readily accessible, institutions should be aware that given sufficient controversy and a clear need for informed public debate, disclosure may be required in the public interest.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
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