Updated publication schemes 2009



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The Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2000 (FOIA) give individuals a general right of access to all types of recorded information held by public authorities in the United Kingdom. The Acts place a number of obligations on public authorities, in addition, the public has the right to access information held by public authorities subject to some exemptions. Dentists providing general dental services (GDS) or Personal Dental Services (PDS) are listed as public authorities.

FOIA means that dentists will have the right to ask for information held by a Primary Care Organisation, such as a PCT, and that members of the public will be able to request information held by GDS and PDS practices.

Every public authority must routinely publish information, respond to requests for information and adopt a publication scheme. A publication scheme is a document that should set out for the public how the public authority intends to publish the different classes of information it holds and whether there is a charge for the information.


  • Updated publication schemes 2009

  • Data protection and freedom of information – how they interact

  • Right to obtain information

  • Exemptions

  • Fees and costs

  • Vexatious or repeated requests

  • Destruction of information

  • Refusal to disclose

  • Compliance with the Act

  • Publication schemes

  • Contacts

  • Annex 1 – the Information Commissioner’s guide to the model publication scheme (England, Wales and Northern Ireland)

  • Annex 2 - BDA model publication scheme (Scotland)





Updated publication schemes 2009

The Information Commissioner’s guidance on publication schemes was reviewed in 2008, with public authorities in England, Wales and Northern Ireland told to adopt an updated scheme by 1 January 2009. Under the new scheme practices and other public authorities must be more proactive. The key to the new regime is not so much the policy. Pieces of paper can so easily become dead letters that tick a box for practice inspectors but do not affect the way in which practices operate on a daily basis. Therefore your new policy must be about routinely publishing or making information available. Normally your practice information leaflet will cover most of the information that the Commissioner says must be made public, for example the names of dentists, details of services offered and opening times.



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The Information Commissioner now states that general dental practitioners in England and Wales should presume that they must disclose their final annual NHS contract value and UDA targets (adjusted for any year end clawbacks) to any member of the public who requests the information.

The BDA has challenged this view, however, recent Information Commissioner adjudications and court cases confirm that that disclosure should be the default situation. General dental services (GDS) and personal dental services (PDS) contracts are public money and the Act provides a general right for the public to know the value of any given item of public spending.

The only exception to disclosure is if a contractor can give a clear reason why it should not be disclosed. Two relevant reasons could be commercial prejudice and personal financial information. However, neither apply automatically.

The ICO has said that there is no unfair prejudice to your commercial interests should other dental practices know your contract value. In fact the Information Commissioner states that it is in the public interest of gaining value for money that competitors know the value of government contracts.

In relation to personal financial information it is the Information Commissioner’s policy that individuals in the public sector must accept that their income bands will be general public knowledge. Also it must be remembered that contract values also cover practice expenses and so do not necessarily give an indication of any given dentist’s income.

Therefore to take advantage of the exceptions you must give further details as to why your circumstances could lead to undue commercial prejudice or the disclosure of delicate personal information.

In order to rely on a reason for not disclosing, you must be able to show that you have considered disclosure and state your reason in your Freedom of Information publication scheme (see Annex 1).

Where you do give a reason for nondisclosure the enquirer could always ask the Information Commissioner to adjudicate which may lead to a ruling that you must disclose the NHS contract value and UDA target after all.

The Information Commissioner’s guidance for publications schemes for dentists is attached in Annex 1, together with the BDA’s advice on how to comply.

Scottish Information Commissioner’s requirements have remained unchanged and a model publication scheme for Scotland is attached in Annex 2. There will be new publication schemes in operation in Scotland from June 2009 and this model will be updated accordingly.



Data protection and freedom of information – how they interact?

The Data Protection Act 1998 (DPA) provides living individuals with the right of access to personal information held about them. This is a personal right. Data Protection law also protects the right to individual confidentiality, for example health records or bank account details. The FOIA relates to government information – how public money is spent and how decisions are made. NHS dental practices are specifically covered by the FOIA since they receive public money in order to provide a frontline healthcare service. However, public authorities must bear in mind that a lot of information they hold will be personal and confidential. Public authorities must also abide by the DPA and in many cases will have to balance the competing obligations. The FOIA publication scheme should be a tool that helps dental practices to achieve this balance.






Right to obtain information

The right of individuals to be given information held by public authorities came into effect on 1st January 2005 across the UK.

FOIA Schedule 1 lists dental practices providing GDS or PDS services as public authorities. NHS dental practices are specifically covered by the FOIA since they receive public money and provide a frontline healthcare service.

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Under the Act an individual may request information held by a public authority. Though, sometimes disclosure of the information is covered by one of the exemptions in the Act.



The FOIA has been widely used and requests could come from any member of the public. However, the Act has largely been used by patients, politicians, journalists and other dentists.

No reason needs to be given for seeking the information and no promises need to be given on how it will be used. Once it has been disclosed it is in the public domain and can be passed on or published. The request for information does not need to mention the FOIA to be covered.

In order to obtain information a written request should be made, both letters and emails count. In Scotland the application can also be made by video or audio tape. The applicant should include their name and address.

Public authorities should provide the name or title of the person to whom requests should be sent. Contact addresses must be published. Websites should contain an email address as well as a postal address.

Information must be provided within 20 working days. In certain circumstances this can be extended: the public authority might seek clarification about the information requested; or it may need to take legal advice on whether an exemption applies. However, in Scotland the twenty working day period is an absolute deadline.

In Scotland if the authority does not have the required information it is obliged to tell the applicant. In England, Wales and Northern Ireland no notice is required but it is sensible to make such a response within 20 working days.

Public authorities in England, Wales and Northern Ireland have a more general duty to confirm or deny that they hold certain information if they are asked the about its existence.

Authorities just need to provide the information requested, not the whole document containing it. Information should be provided in writing or by allowing the applicant to read the information.





Exemptions

A public authority is able to decline to disclose information if one of the exemptions applies. For some of the exemptions, authorities must also take into account the balance of the public interest to disclose or not. In order to withhold information covered by an exemption, an authority must show disclosure would prejudice a specified interest (in Scotland an authority must show that disclosure would substantially prejudice an interest). Public authorities are expected to disclose and exemptions are only to be used exceptionally.






Confidentiality

The normal rules of medical confidentiality apply here. For example, personal information about individual patients cannot be disclosed as well as personal information about employees. Employee names and job titles would not be held to be confidential, however, except where their individual circumstances make this necessary.

Information held by dentists that is likely to be covered by confidentiality includes:


  1. . personal information about patients, including personal health information

  2. . personal information about employees and other practice workers

  3. . information about patient complaints (except the number of complaints)

    1. . appointment information and individual claim information.

    2. Some information held by PCOs about dentists that is likely to be confidential includes:

  4. . personal information about dentists or staff

  5. . health information about dentists or staff

  6. . information about patient complaints (except the number of complaints).

There may be information that dentists may feel should be covered by this exemption which may not to be covered, for example the results of investigations by a Primary Care Organisation. Whilst a public authority is conducting an



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investigation into a dentist, it is confidential and exempt from disclosure, but once a decision has been made it then becomes open to disclosure.

Trade secrets or prejudicing commercial interests

Trade secrets are business information that are not generally known to the public or competitors that gives a commercial advantage. Trade secrets must be balanced against the public interest in the disclosure of information.

Most dental practices will not have trade secrets. Dental practice should be evidence based and dentists should not be using clinical procedures that are not based on published evidence.

A commercial interest relates to a person’s ability successfully to participate in a commercial activity, it is the not the same as a financial interest. When considering whether a dentist’s commercial interests might be prejudiced it is necessary to identify the interests themselves and how disclosure might prejudice them. Examples are business reputation, the ability to obtain supplies or the ability to secure finance. Commercial interests must also be balanced against the public interest in the disclosure of information.

Government guidance is that there is generally a public interest in the disclosure of commercial information in order to ensure that there is transparency and accountability in the allocation of public funds.

Factors in favour of maintaining trade secrets and commercial confidentiality include where disclosure would make it less likely that companies or individuals would provide public authorities with commercially sensitive information in the future.

The general advice is that before contracts are awarded the public interest argument for disclosure is not strong, but after the contract has been awarded there is a greater case for information to be made available regarding the contract price and services to be provided.

GDS and PDS Earnings and contract information

If asked, it is possible that a PCO or the BSA would disclose information about dentists’ NHS earnings or contract values. If there was no disclosure, the Information Commissioner might order the information to be disclosed. Information on the amount of money the NHS and patients are paying for GDS or PDS services for the last financial year (that is net of clawbacks), if known by other dentists, is unlikely to be deemed to damage the practice’s commercial interests.

Where a Primary Care Organisation invites bids for funding, it is unlikely that the results of the bidding process will be covered by commercial interest exemptions and so will be disclosable. Some PCOs already publish the results of grant application processes in terms of amounts awarded to practices and for what purpose. The details of the actual bidding process and the bids themselves might also be published, although this is less likely because it might be discourage future bidders and therefore not be in the public interest.

The Information Commissioner has stated that they expect dental practices to disclose their NHS contract values and targets if asked.

As discussed above, the Information Commissioner has said that there is no unfair prejudice to your commercial interests should other dental practices know your contract value. In fact the Information Commissioner states that it is in the public interest of gaining value for money that competitors know the value of government contracts.

In relation to personal financial information it is the Information Commissioner’s policy that individuals in the public sector must accept that their income bands will be general public knowledge. Also it must be remembered that contract values also cover practice expenses and so do not necessarily give an indication of any given dentist’s income.



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Therefore to take advantage of the exceptions you must give further specific details as to why your circumstances could lead to undue commercial prejudice or the disclosure of delicate personal information.




Information from practice visits

If asked it is likely that a PCO would disclose a practice visit report for an individual practice and would certainly disclose an aggregate report for all local practices. Although the information may affect the commercial interests of the dental practice, it is likely that, because compliance with NHS regulations and health and safety standards is a legitimate concern of patients, it would be in the public interest to publish the information.






Fees and costs

Fees may be charged for providing the information under the FOIA. However, you should not charge for information since this is information that they are required to provide as part of your terms of service, or is information voluntarily provided, such as oral health information.

It is unlikely that a charge will be levied by PCOs for straightforward requests and for dental practices charges are likely to be minimal. Where the information request is covered by other pieces of legislation, for example the Data Protection Act, the charge that is appropriate for that legislation will apply even if it is lower.



England, Wales & Northern Ireland

There is a limit for the cost of meeting requests under the FOIA. For public authorities other than government departments, the limit is £450. In order to calculate the cost of providing the information, the number of hours should be calculated as the total time taken to determine whether it holds the requested information, locate it and retrieve it. The cost of staff time to be used has been fixed at £25 per hour per member of staff. If the calculated amount is below £450 then the authority may make a reasonable charge for providing the information to cover any costs relating to photocopying, printing or postage.

If the authority proposes to charge a fee, it must give the applicant a fees’ notice stating the amount and may require payment prior to the applicant being given the information. The applicant has three months to pay. The number of working days between the applicant being given a fees notice and the fee being received is not counted in the 20 working day period that the authority has to meet the request.

If the anticipated cost of meeting the request exceeds the maximum limit of £450, the authority may refuse to provide the information, though it could agree to provide the information without a fee or charge the actual cost of responding to the request including staff time.

Where two or more requests are made are made to a public authority by the same individual, or by different people who appear to be acting in concert, or in pursuance of a campaign, the estimated cost can be added together and the request denied if it exceeds the maximum limit.



Scotland

There are different amounts for costs in Scotland. Public authorities should calculate the cost of compliance in the same way as above, using a figure of £15 per hour per staff member. The cost of compliance above which a disclosure need not be made is £600 for all public authorities.

Fees that can be charged are also calculated differently. Where the projected cost of disclosure is less than £100, no fee is payable by the applicant. Where the projected cost is between £100 and the prescribed amount, £600, the fee will be no more than 10 per cent of the difference between them. Fees are for photocopying, production of the information in the required format and postage.

In Scotland where different people who appear to be acting in concert make requests the term campaign is not used; instead reference is made to “a purpose other than for obtaining information”.





Vexatious or repeated requests

Public authorities are not required to respond to vexatious or repeated requests although they may do if they wish. A vexatious request is likely to be one that is designed to subject the authority to inconvenience, harassment or expense. The effect of the request is important, as



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well as the intention. If a request will cause disproportionate inconvenience and expense it might be held to be vexatious.

Where the applicant had submitted a previous request or requests for identical or very similar information, the public authority is not required to provide the information unless a reasonable interval has elapsed between compliance with the previous request and the making of the latest request. If information changes regularly, for example performance information or activity information, then if it is requested every time the information changes, it is not covered by this exemption.






Destruction of information

It is an offence, after the information request has been made, to alter, deface, block, destroy or conceal information with the intention of preventing disclosure. This does not prevent information being properly managed and old records being destroyed after an appropriate length of time.




Refusal to disclose

Where a request to disclose is refused, the public authority must write to the applicant stating:



  1. . the fact that the request has been refused

  2. . specifying the exemption in question

  3. . stating (if that would not otherwise be apparent) why the exemption applies.

The response must also contain details of any complaints procedure for handling requests for information or state that the organization does not have one. The applicant should also be advised of their right to complain to the Information Commissioner or the Scottish Information Commissioner.




Compliance with the act

An applicant who is dissatisfied with the response of a public authority to a request for information, should complain to that public authority in the first instance. In England, Wales and Northern Ireland authorities should have a complaints procedure. In Scotland, applicants may ask for a review of the refusal and authorities usually have 20 days to complete the review. If the authority upholds its decision, the applicant can complain to the Information Commissioner or the Information Commissioner in Scotland.

The Commissioner has a duty to investigate the case and give a ruling on whether the information should be disclosed or not. The Commissioner may also issue an enforcement notice, where the authority is compelled to undertake a particular action.

In England, Wales and Northern Ireland if the applicant or the authority is dissatisfied with the Commissioner’s ruling an appeal can be made to the Information Tribunal. This can be made on a point of law or on the basis that the Commissioner ought to have exercised discretion differently. Further appeal can be made to the High Court on a point of law. In Scotland an authority and applicant can appeal on a point of law to the Court of Session against a decision made by the Information Commissioner in Scotland.



Publication schemes



England and Wales

The original publication scheme – that is the list of information available – had to be in place by 31 October 2003. As a list of information available practices must be able to supply the information to anyone who requests it. Having reviewed the situation the Information Commissioner required all public authorities to introduce a new publication scheme by 1 January 2009.

The new publication scheme is basically an extended commitment to comply with the FOIA. All public authorities must simply adopt this statement simply by accessing a copy of the Information Commissioner’s model and promising to abide by it. Be pragmatic, understand what the scheme commits you to do but there is no formal procedure, no form filling and no need to notify the Information Commissioner. The publication scheme is available at www.ico.gov.uk The scheme is for organisations that provide both NHS and private activities so is applicable to most dental practices.

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However, adopting the scheme does commit you to routinely publish or make information available. The Information Commissioner has published specific guidance on what this information should be and how it should be published. A copy is attached in Annex 1, including further comments by the BDA.




Scotland

The publication scheme should have been in place by 1 September 2004, with rights of access from January 2005.

The scheme must include the following information:


  1. . The classes of information the authority publishes

  2. . The manner in which the information is published

  3. . Details of any fees for the information.

The BDA’s model scheme for Scotland, which have been approved by the Scottish Information Commissioner, are attached at annex 2. It makes no mention of individual or practice NHS income.



Contacts

England, Wales & Northern Ireland

The Information Commissioner

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Tel: 01625 545 745

Fax: 01625 524 510

http://www.ico.gov.uk/

Scotland

Scottish Information Commissioner

Kinburn Castle

Doubledykes Road

St Andrews

Fife


KY16 9DS.

Tel: 01334 464 610

Fax: 01334 464 611

http://www.itspublicknowledge.info/home/S

cottishInformationCommissioner.asp



Guide to Information provided by NHS dentists under the model publication scheme

Under the Freedom of Information Act 2000 all public authorities are required to have and operate a publication scheme approved by the Information Commissioner.

It is the intention of the Information Commissioner that all public authorities should adopt and operate the one model scheme that has been approved. This is a very general scheme based on the principal that all public authorities need to recognize the public interest in the transparency of the services provided for and paid for by the general public. It is a commitment to make information easily available to the public.



Note: The scheme is only for information held as a public authority and does not include any information that is not held, is held for other purposes or would be exempt from release.

The scheme requires three documents to be considered:



  • the model scheme itself;
    • our guidance on adopting and operating the scheme; and,



  • a guide provided by the public authority indicating what information will be provided, how it will be provided and whether any charge will be made for its provision.

[BDA note: the model scheme and guidance on operating the scheme are published by the Information Commissioner. Both can be obtained from the Information Commissioner or downloaded from www.ico.gov.uk. The third document should be based on this Annex, this is also published by the Information Commissioner though the BDA has added additional guidance notes in red.]

To assist dentists we have produced the outline of a guide for their use. They should consider expanding elements of it to provide greater explanation where this can be done. For example if there are specific plans for the provision of NHS services these could be detailed. It is not necessary to submit the guide completed by the practice for approval.

We recognize that it is unlikely that dentists are going to have registers available for public inspection and while this remains the case “None Held” can be entered in this section. Under policies and procedures we have listed the policies we would expect dental practices to have. Again if this is not the case, “Not held” can entered in the relevant part. Any additional policies should also be listed.

Fees should be requested only where this is done in accordance with our guidance.

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Information available from (Insert name of person (or practice) providing dental services under contract to the NHS) under the Freedom of Information Act model publication scheme

Information covered by this scheme is only about the [general dental services OR personal dental services] we provide under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006.





Information to be published

How the information can be obtained (eg hard copy, website)

Cost

Class1 - Who we are and what we do YourSmile dental care

91 Ashby Road

Loughborough

Leicestershire

LE11 3YG
We provide general dental services within the NHS Denplan and Privately


hard copy, website

‘No charge

Who’s who in the practice
Please refer to the practice leaflet or the relevant parts of this web site for the dentists providing dental care

hard copy, website

‘No charge

Contact details for the practice

These details are available in our patient information leaflet, which can be obtained from reception’or the relevant parts of this web site for the dentists providing dental care



hard copy, website

‘No charge

Opening hours

These details are available in our patient information leaflet, which can be obtained from reception’



hard copy, website

‘No charge

Staffing structure

This information is not held




















Class 2 – What we spend and how we spend it (Financial information relating to projected and actual income and expenditure, procurement, contracts and financial audit) Current and previous financial year as a minimum







Total final cost to the PCT/LHB/HPSS of our contracted services

Information on NHS funding and contract targets is available from the practice owner J F Wanstall



hard copy





© BDA January 2009

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Class 3 – What our priorities are and how we are doing (Strategies and plans, performance indicators, audits, inspections and reviews) Current and previous year as a minimum







Plans for the development and provision of NHS services

These details are available in our patient information leaflet, which can be obtained from reception’



hard copy

‘No charge

Practice Inspection

The date and conclusions of our last practice inspection are available by asking Dr Wanstall



hard copy

‘No charge










Class 4 – How we make decisions (Decision making processes and records of decisions) Current and previous year as a minimum







Records of decisions made in the practice/firm affecting the provision of NHS services

As a small business formal records of management decisions are not normally recorded, however, any changes in the provision of NHS services would be incorporated into an updated patient information leaflet, our current patient information leaflet, which can be obtained from reception. We may also notify patients by notices in our reception area.






‘No charge











Class 5 – Our policies and procedures (Current written protocols, policies and procedures for delivering our services and responsibilities) Current information only (delete any policies not actually held)







Policies and procedures about customer service These details are available in our patient information leaflet, which can be obtained from reception’ other policies can be obtained by applying to the practice manager in writing.

hard copy

Photocopy charge of 5p per sheet

Equality and diversity policy

A copy of this policy can be obtained by applying to the practice manager in writing



hard copy

Photocopy charge of 5p per sheet

Health and safety policy

A copy of this policy can be obtained by applying to the practice manager in writing



hard copy

Photocopy charge of 5p per sheet

Complaints procedures (including those covering requests for information and operating the publication scheme)

A copy of this policy can be obtained from reception



hard copy

Photocopy charge of 5p per sheet

Records management policies (records retention, destruction and archive)

A copy of our Records management policies obtained by applying to the practice manager in writing



hard copy

Photocopy charge of 5p per sheet

Confidentiality and data protection policies

A copy of our confidentiality policy obtained by applying to the practice manager in writing



hard copy

Photocopy charge of 5p per sheet

Policies and procedures for handling requests for information

This information is contained within this document



hard copy, website

No charge












Class 6 – Lists and Registers Currently maintained lists and registers only







Any publicly available register or list

This information is not held



























Class 7 – The services we offer (Information about the services we offer, including leaflets, guidance and newsletters produced for the public and businesses) Current information only







The services provided under contract to the NHS

These details are available in our patient information leaflet, which can be obtained from reception






No charge’

Charges for services

These details are available in our patient information leaflet on this web site and on the posters in the waiting areas






No charge’

Information leaflets

These details are available in our patient information leaflet, which can be obtained from reception






No charge’











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