A TIMELINE OF POLITICAL EVASION
We started our campaign by making a simple request from the Government: “You organised Exercise Cygnus so that we could learn about our national pandemic capabilities. Can you please now allow us to learn from the Cygnus Reports?” The Department of Health used section 12 of the Freedom of Information Act (and later section 35) to evade transparency. We then applied for Judicial Review, arguing that the Government had a duty to disclose the Reports under the Civil Contingencies Act.
Eventually, the Department of Health was forced to disclose Public Health England’s overview report of Cygnus, but affirmed it did not have the other reports mentioned in our witness evidence, in particular a population triage report. Relying on this affirmation, we withdrew from Judicial Review. On 18 December 2020, the Telegraph published a document which showed the Department of Health had received a population triage report from NHS England in December 2017.
On 21 December 2020, we responded to the Health Secretary’s politics of evasion by launching Phase 2 – a new campaign involving nine public authorities. Five of those public authorities continue to withhold pandemic preparation data of public interest.
Phase 1 – Department of Health & Social Care
"full copy of any report and/or conclusions of Exercise Cygnus including any documents showing conclusions relating to challenges to the supply of PPE and ventilators"
The Department of Health (and Social Care) uses section 12 to close down our request as "too wide"
"The reports that were prepared as part of the Cygnus Exercise...a report produced on each aspect of the exercise, such as NHS, social care and each Local Resilience Forum"
"The Department is currently assessing the public interest in release under section 35, but requires further time... We anticipate this process will take no longer than a further 20 working days to complete. We therefore aim to respond fully to your request by 17 July."
The Information Commissioner's Office orders the Department of Health to respond to our Freedom of Information request within 20 working days
"Today, I am publishing the report into Exercise Cygnus... I will deposit copies of the reports in the Libraries of both Houses and it will be available on gov.uk"
The Department of Health refers us to the report disclosed by the Health Secretary, and apologises for the delayed response to our FOI request
We submit 996 pages of evidence, arguing the Department of Health must disclose the reports which followed Exercise Cygnus, including a "pandemic surge" document and others
Judge refuses to allow our case to be heard in court, saying that a response to our FOI request should have been received by now
We renew our application for permission to take the Department of Health to court
The Government Legal Department suggests we should withdraw our legal action after the Health Secretary discloses PHE's Cygnus Report
We write to the GLD, saying that we do not believe the Health Secretary has disclosed all relevant documents
The Government Legal Department asserts that the Department of Health has no further documents related to our application for Judicial Review
On the basis of categorical denial by the GLD that the Department of Health holds the Cygnus Reports we seek, we withdraw our application for Judicial Review and decide to expand our campaign beyond the Department of Health
Documented evidence that the Department of Health received - as "Lesson Identified 5" from Exercise Cygnus - a report on pandemic surge and population triage from NHSE in December 2017
Phase 2 – Department of Health & Social Care
“Two reports submitted by NHSE to the former CMO Dame Sally Davies following Exercise Cygnus:
Pandemic Influenza Briefing paper – NHS Surge and Triage... Pandemic Influenza Briefing paper – Adult social care and community healthcare”
“The Department is currently assessing the public interest in release under Section 36... We anticipate this process will take no longer than a further 20 working days to complete. We therefore aim to respond fully to your request by 18 February 2021.”
"The fact that the DHSC has repeatedly delayed even making a decision while it has 'assessed the public interest' over several months represents a fundamental subversion of the Freedom of Information process because my legal team cannot challenge the DHSC’s decision at Tribunal until after it has made a decision."
"DHSC holds the information you requested. However, we consider that this information is exempt from release... in the opinion of a ‘qualified person’, in this case a Minister of the Crown, its disclosure would prejudice the free and frank provision of advice or exchange of views for the purposes of deliberation, or would... prejudice, the effective conduct of public affairs."
"I have concluded that the response provided was compliant with the requirements of the FOIA and I uphold DHSC’s decision to withhold the requested information under section 36(2)(b)(i)(ii) and (c). The qualified person was the Parliamentary Under Secretary of State (Minister for Prevention, Public Health and Primary Care), Jo Churchill."
Leigh Day provide legal arguments to ICO in favour of disclosure of pandemic population triage documents.
Phase 2 – NHS England
“Pandemic Influenza Briefing paper – NHS Surge and Triage... Pandemic Influenza Briefing paper – Adult social care and community healthcare”
“Whilst we take our statutory duties in respect of Freedom of Information seriously... we have been unable to respond to your request within the statutory timescale... as a result of our need to prioritise our resources in dealing with the pandemic... ”
"I am making this request as an NHS doctor working in a hospital which is dealing with an enormous surge in seriously sick patients with COVID-19. It is very difficult for doctors to make complex ethical decisions on allocation of scarce resources without national guidance."
ICO imposes deadline of 10 working days for NHS England to provide initial response to our FOI request.
ICO finds that NHSE have breached section 10(1) of the Freedom of Information Act, and issues Decision Notice requiring it to respond within 35 calendar days.
"Section 38(1)(a) of the FOI Act exempts information which would or would be likely to endanger the physical or mental health of any individual... The risk being that patients would be likely, to the detriment of their health, to fail to attend hospital as a result of being cognisant of the information."
Phase 2 – The Cabinet Office / Civil Contingencies Secretariat
“Copies of overall summary reports on the four simulated COBR meetings run by the Civil Contingences Secretariat (CCS) during the Command Post Exercise (CPX) for the second phase of Exercise Cygnus from 18 to 20 October 2016.”
“It is important that... Ministers and officials have space to objectively explore lessons identified with complete candour, and then develop policies and/or response plans to address these points... I have concluded that the balance of the public interest favours withholding this information.”
"I have carefully reviewed the handling of your request and I consider that the exemptions at section 35(1)(a) and (b) of the Freedom of Information Act were properly applied. I believe that the balance of the public interest was fully considered for the reasons set out it our letter of 02 February 2021. I have therefore concluded that I should uphold the decision given in our letter."
Leigh Day provide legal arguments to ICO in favour of disclosure of records of secret COBR meetings held during Exercise Cygnus.
“Specifically, I request copies of hot debrief notes, cold debrief notes, and the evaluator questionnaire... as part of Exercise Cygnus. The time period I am seeking information for is the 3 months following 18 October 2016.”
“The exemptions applicable to the information you have requested are:
Section 24 of the Act - National Security.”
"A disclosure of information under the Freedom of Information Act 2000 is a disclosure to the world at large, we will not be only supplying data to the requestor, but also placing it in the public domain and making it available to those who would pose a risk to identified individuals and our national security."
Phase 2 – Public Health England
“... how many UK pandemic / epidemic simulation exercises were carried out with PHE’s participation between 1 January 2015 and 31 December 2019... For each exercise... (a) the operational name of the exercise, (b) the infectious disease being modelled, (c) the month and year of the exercise, and (d) whether PHE holds a copy of the main report summarising the findings of the exercise.”
Public Health England fails to acknowledge or respond to FOI request within statutory limit of 20 working days.
ICO informs us that PHE apparently responded to our FOI request on 9 March 2021, and refused to disclose information on grounds of national security.
We do not believe it is reasonable to argue that disclosure of the number of pandemic exercises threatens national security.