From: FOI (Torbay and South Devon NHS Foundation Trust) tsdft.foirequests@nhs.net
To: Susie Colley (chair@tqcc.co.uk)
Reference: TSD10396
Cover email signed by: Jamie Whaling, Associate Director of Legal Services and Acting Data Protection Officer
Substantive response signed by: Freedom of Information Team

Dear Ms Colley,

Request for Information

We are writing to confirm that we have now completed our search for the information you requested. A copy of the information is below.

[The Trust's response then reproduces the campaign's original 29 March 2026 request in full before providing the substantive answer below.]

Trust position:

The Trust has carefully considered your request. Whilst we hold information within scope, we are unable to release the requested information as it is exempt under Section 36 of the Freedom of Information Act 2000.

Section 36 is a qualified exemption which applies where, in the reasonable opinion of a qualified person, disclosure of the information would or would be likely to have the effects set out in the Act. The Trust sought and obtained a formal opinion from the Trust's Chief Executive Officer, who is a qualified person for the purposes of Section 36(5) of the Act. The qualified person's opinion was that disclosure of the requested information would be likely to:

• Inhibit the free and frank provision of advice (Section 36(2)(b)(i));
• Inhibit the free and frank exchange of views for the purposes of deliberation (Section 36(2)(b)(ii)); and
• Otherwise prejudice the effective conduct of public affairs (Section 36(2)(c)).

This opinion is supported by the live and sensitive nature of the issues covered by the request, including ongoing financial pressures, recovery planning, and partnership working with the local authority under Section 75 arrangements.

As Section 36 is a qualified exemption, the Trust has considered whether the public interest in disclosure outweighs the public interest in maintaining the exemption.

Public interest factors in favour of disclosure:

The Trust recognises that there is a public interest in:

• Transparency and accountability in relation to the use of public funds;
• Enabling public understanding of financial pressures and how they are identified and managed; and
• Allowing scrutiny of governance arrangements and decision-making within Adult Social Care and Section 75 partnerships.

Public interest factors in favour of maintaining the exemption:

However, the Trust considers that there is a stronger public interest in:

• Preserving a safe space for senior officers, Board members, and partners to discuss sensitive financial risks candidly while issues remain live;
• Ensuring that officers and partners can provide honest, comprehensive advice and challenge without concern that preliminary views or draft proposals will be disclosed prematurely;
• Protecting effective joint working with partner organisations, including the local authority, where trust and confidentiality are essential to resolving complex issues; and
• Avoiding confusion or misinterpretation arising from the disclosure of draft, incomplete, or evolving information, which could divert time and resources away from addressing the underlying financial challenges.

The qualified person concluded that disclosure would be likely to inhibit frank discussion and advice now and, in the future, undermining the quality of decision-making and prejudicing the Trust's ability to conduct its affairs effectively.

While the Trust acknowledges the value of openness and accountability, it has concluded that, in this case, the public interest in maintaining the exemption outweighs the public interest in disclosure. Releasing the requested information would be likely to cause real and substantive harm to effective governance, partnership working, and financial recovery activity.

The information supplied to you continues to be protected by the Copyright, Designs and Patents Act 1988. You are free to use it for your own purposes, including any non-commercial research you are doing and for the purposes of news reporting.

If you wish to discuss any of the above, please contact us, quoting the FOI reference number above.

If you are unhappy with the way in which we have handled your request, please contact the Data Protection and Freedom of Information Lead in the first instance. If you wish to make a formal complaint, you should write to our Complaints Manager at Torbay and South Devon NHS Foundation Trust, First Floor Bowyer Building, Torbay Hospital, Torquay TQ2 7AA or by email to tsdft.feedback@nhs.net

If you are not content with the outcome of your complaint or the internal review, you may apply directly to the Information Commissioner for a decision. Generally, the Information Commissioner will only make a decision once you have exhausted the complaints and/or internal review process provided by us. The Information Commissioner can be contacted at: The Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF or through this link https://ico.org.uk/global/contact-us/

Yours sincerely,

Freedom of Information Team
Torbay and South Devon NHS Foundation Trust

Cover email from Jamie Whaling, Associate Director of Legal Services and Acting Data Protection Officer (20 May 2026 15:14): "Dear All, We are writing to confirm that we have now completed our search for the information you requested. A copy of the information is attached." This is the first response on the tracker signed by Legal Services rather than the Data Protection Lead.

From: Susie Colley (chair@tqcc.co.uk)
To: Data Protection and Freedom of Information Lead, Torbay and South Devon NHS Foundation Trust
CC: John Govett, Mark Hackett, Joe Teape, Martin Beaman, Cat Johns (Torbay Council)
Reference: TSD10396

Dear Data Protection and Freedom of Information Lead,

FOI Reference: TSD10396

I request an internal review of the decision to withhold the requested information under section 36 of the Freedom of Information Act 2000.

While I acknowledge that section 36 may apply to certain information, I am concerned that the exemption appears to have been applied on a blanket basis across all requested material without sufficient consideration of partial disclosure.

I ask the reviewer to consider:

• Whether each category of information was assessed individually rather than collectively.
• Whether factual information can be disclosed, including:
  • the date the Section 75 Recovery Plan was first presented;
  • dates of escalation to the Board;
  • dates of inclusion on the Board Assurance Framework;
  • finalised committee reports and minutes;
  • factual financial monitoring information.
• Whether reasonably severable information can be released through redaction of material genuinely considered exempt.
• Whether the public interest test has given sufficient weight to the significant public interest in transparency concerning Adult Social Care finances, Section 75 governance arrangements, and the management of public funds.
• Whether the "safe space" and inhibition arguments remain applicable to historic records identifying the earliest recognition of financial imbalance and the need for recovery action.

I would also be grateful if the review could confirm:

• the date on which the qualified person's opinion was obtained;
• whether the opinion considered each category of information separately; and
• whether any information was considered for partial disclosure.

In the event that the internal review upholds the refusal, The Heart Campaign will issue a complaint to the Information Commissioner's Office (ICO).

Based on the wording of the refusal, the overarching assessment of your decision is that the strongest argument is that the Trust has not adequately justified withholding all of the requested material, particularly factual records and historic documents.

I look forward to receiving the outcome of the internal review.

Kindest regards

Susie Colley
Chair of the Torquay Chamber of Commerce and the Heart Campaign
(Declined) Governor of Torbay Hospital

From: FOI (Torbay and South Devon NHS Foundation Trust) tsdft.foirequests@nhs.net
To: Susie Colley (chair@tqcc.co.uk)
Subject: RE: TSD10396 - FOI Extension of Time
Trust contact: foi.tsdft@nhs.net
Reference: TSD10396

Dear Susie,

Request for Information

Thank you for your request for information which we received on 29/03/2026. We can confirm that the Trust does hold Section 75 arrangements and associated financial pressures in Adult Social Care falling within the terms of your request.

The Freedom of Information Act obliges us to respond to requests promptly and in any case no later than 20 working days after receiving your request.

When a qualified exemption is potentially applicable and the public interest test becomes relevant, the Act permits an extension of the response period beyond 20 working days. In such cases, a comprehensive reply must be issued within a timeframe that is considered reasonable given the specific circumstances.

We aim to make all decisions within 20 working days, including cases where we need to consider where the public interest lies in respect of a request for exempt information. In this case, however, we have not yet reached a decision on where the balance of public interest lies.

In your case, we estimate that it will take an additional 20 working days to take a decision on where the balance of public interest lies. We plan to let you have a response by 20/05/2026. If it appears that it may take longer to reach a conclusion, we will keep you informed.

The specific exemption(s) which apply in relation to your request is/are:

• Section 12(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

Note on the changed exemption: The extension notice of 21 April 2026 cited Section 12(1) (cost limit) as the potentially applicable exemption. The final response of 20 May 2026 applied Section 36 instead. Section 36 (qualified person opinion on inhibition of frank discussion) and Section 12 (cost of compliance) operate on entirely different grounds. The Trust has not explained the change.

If you wish to discuss any of the above, please contact us, quoting the FOI reference number above.

Yours sincerely,

Sarah Goss
Data Protection Lead
Torbay and South Devon NHS Foundation Trust

To: Joe Teape (Trust CEO), with Martin, Chris, Sally, Phil, Torre, Nicole, Cat, David, Anne-Marie, Jim
Date: 29 March 2026, 23:02

Good Evening

Having looked at the Accounts for the TBH it would appear necessary to obtain further information therefore under the Freedom of Information Act 2000, please provide the following information relating to the Section 75 arrangements and associated financial pressures in Adult Social Care:

1. Section 75 Recovery Plan

• The date on which the Section 75 Recovery Plan was first presented to the Business Development Committee
• Copies of the initial version of the Recovery Plan, and any subsequent revised versions presented during 2024/25

2. Committee Papers and Minutes

• All agenda papers, reports, and minutes of the Business Development Committee where the Section 75 Recovery Plan was discussed, reviewed, or approved during 2023/24 and 2024/25

3. Earliest Identification of Financial Pressure

• The earliest internal report, briefing, or risk register entry (including Board Assurance Framework entries) that identifies:
  • a material mismatch between income and expenditure within the Section 75 / Adult Social Care arrangements, or
  • a requirement for recovery, mitigation, or transformation action

4. Financial Monitoring Reports

• Monthly or periodic budget monitoring reports for Adult Social Care / Section 75 arrangements from April 2023 to March 2025, including any exception reports highlighting overspends or cost pressures

5. Escalation and Risk Classification

• The date on which the financial position was formally escalated to:
  • the Board, and/or
  • inclusion on the Board Assurance Framework as a financial sustainability risk
• Copies of the relevant BAF entries and any supporting documentation

Please provide the information in electronic form. Where documents are withheld, please specify the exemption(s) relied upon and provide any reasonably severable material.

If the request exceeds cost limits, please prioritise: (1) the earliest report identifying the issue, and (2) the first presentation of the Section 75 Recovery Plan.

For the avoidance of doubt, this request seeks to identify the earliest point at which the financial imbalance was recognised internally as requiring intervention, rather than routine monitoring.

Thank you

Susie Colley
Chair of the Torquay Chamber of Commerce and the Heart Campaign
Elected Governor of Torbay Hospital