From: Susie Colley (chair@tqcc.co.uk)
To: FOI (Royal Devon University Healthcare NHS Foundation Trust) rduh.foi@nhs.net
Subject: FOI Request - Pre-emptive Challenge to Proposed Use of Sections 40(2) and 43(2)

Good evening, Mr Pethick

Thank you for your update of 14 November advising that you require further time under Section 10(3) of the Freedom of Information Act 2000 (FOIA) to consider the balance of public interest in relation to Sections 40(2) and 43(2).

I wish to register the following points before a final decision is made, as it appears highly unlikely that either exemption can lawfully justify withholding the information I have requested.

1. Section 40(2) - Limited and specific application only

Section 40(2) may be relevant only to the extent that disclosure would identify named individuals, such as junior staff or patients.

However, the full text of the Royal College of Physicians' recommendations, action plans, evidence of monitoring, and any subsequent internal reviews are organisational documents, not personal data.

ICO guidance (e.g., FS50625792, FS50647482) confirms that redaction, not withholding, must be used where only small passages contain personal data. Therefore, any reliance on Section 40(2) must be confined strictly to names or clearly identifiable personal information, not the substance of the recommendations or actions.

2. Section 43(2) - Highly unlikely to apply to clinical governance material

Section 43(2) requires the authority to demonstrate that disclosure would be likely to prejudice commercial interests. For the type of information requested, clinical quality recommendations and governance action plans, this test is very rarely met.

ICO decision notices consistently hold that clinical reviews, quality assessments, Royal College visits, and governance action plans do not constitute commercially sensitive material, and that the public interest in transparency about patient safety and quality of care far outweighs organisational sensitivities (examples: FS50739389, FS50608069, FS50833947).

Any assertion that disclosure would prejudice commercial interests must be supported by clear, specific, and evidenced harm, not vague or speculative concerns, and not general reputational issues, which are not grounds for Section 43(2). Unless the ICB can identify real, specific commercial harm, which is highly unlikely in this context, Section 43(2) cannot be sustained.

3. The public interest strongly favours disclosure

The public interest in the requested information is significant: it concerns clinical quality, patient safety, and service performance; the Royal College of Physicians is a statutory professional authority whose recommendations relate directly to care standards; the ICB is reportedly preparing a "case for change," increasing the need for transparency, not reducing it; and previous ICO rulings establish that public confidence in NHS decision-making outweighs internal sensitivities. Under Section 2(2)(b), unless the public interest in withholding is clearly stronger (which is highly unlikely), the information must be disclosed.

4. Request for a proportionate and lawful response

Given the above, I request that the final response releases the full recommendations, the action plans and monitoring evidence, and any subsequent internal reviews, using minimal and properly justified redaction only where Section 40(2) genuinely applies.

If the ICB intends to rely on Section 43(2), I request a detailed explanation of the specific commercial harm, who it affects, how disclosure would cause that harm, and why the public interest favours withholding. This will assist me in determining whether an internal review or an ICO complaint is required.

I look forward to your full response.

Kindest regards

Susie Colley
Chair of the Torquay Chamber of Commerce and the Heart Campaign