timeline

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

20 April 2020 FOI process launches

FOI request

"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"

19 May 2020 DHSC response

DHSC rejects request

The Department of Health (and Social Care) uses section 12 to close down our request as "too wide"

21 May 2020 Refined FOI request

FOI request

"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"

19 June 2020 DHSC response

DHSC delays decision

"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."

16 July 2020 DHSC response

DHSC delays decision

14 August 2020 DHSC response

DHSC delays decision

12 September 2020 DHSC response

DHSC delays decision

28 September 2020 ICO response

ICO intervenes

The Information Commissioner's Office orders the Department of Health to respond to our Freedom of Information request within 20 working days

20 October 2020 Disclosure

Secretary of State for Health discloses report

"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"

27 October 2020 DHSC response

DHSC apologises

The Department of Health refers us to the report disclosed by the Health Secretary, and apologises for the delayed response to our FOI request

1 June 2020 Judicial Review case launches

JR submission

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

23 August 2020 Judicial response

Permission refused

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

28 August 2020 Our appeal

Renewal application

We renew our application for permission to take the Department of Health to court

27 October 2020 Government response

GLD seeks withdrawal

The Government Legal Department suggests we should withdraw our legal action after the Health Secretary discloses PHE's Cygnus Report

28 October 2020 Our response

Refusal to withdraw

We write to the GLD, saying that we do not believe the Health Secretary has disclosed all relevant documents

3 November 2020 Government denial

GLD issues denial

The Government Legal Department asserts that the Department of Health has no further documents related to our application for Judicial Review

13 November 2020 Legal case withdrawn

JR withdrawal

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

18 Dec 2020 The Telegraph

New evidence

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

21 Dec 2020 Targeted FOI request

FOI request

“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”

22 Jan 2021 DHSC response

DHSC delays decison

“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.”

22 Jan 2021 Request for ICO intervention

Complaint to ICO

"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."

22 Jan 2021 DHSC response

DHSC gives 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."

22 Jan 2021 Request for Internal Review

IR request

18 Feb 2021 DHSC response

Internal Review of DHSC

"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."

25 Feb 2021 Section 50(1) FOIA application

Application for ICO decision

23 March 2021 Leigh Day submissions to ICO

Legal Submissions

Leigh Day provide legal arguments to ICO in favour of disclosure of pandemic population triage documents.

17 Jun 2021 ICO finds against DHSC

ICO Decision Notice

ICO orders DHSC to disclose secret pandemic surge briefing papers

Phase 2 – NHS England

21 Dec 2020 Targeted FOI request

FOI request

“Pandemic Influenza Briefing paper – NHS Surge and Triage... Pandemic Influenza Briefing paper – Adult social care and community healthcare”

21 Jan 2021 NHSE response

NHSE delays decison

“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... ”

23 Jan 2021 Reminder of FOI obligations

Reminder to NHSE

"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."

28 Jan 2021 Request for ICO intervention

Complaint to ICO

10 Feb 2021 ICO intervention

ICO deadline

ICO imposes deadline of 10 working days for NHS England to provide initial response to our FOI request.

2 March 2021 ICO finds against NHSE

ICO Decision Notice

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.

6 April 2021 NHSE response

NHSE gives decision

"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."

12 April 2021 Request for Internal Review

IR request

17 May 2021 Request for ICO intervention

Complaint to ICO

NHSE fails to response to request for internal review within 20 working days

14 June 2021 ICO intervention

ICO deadline

ICO orders NHSE to provide internal review within 7 working days

25 June 2021 Request for ICO intervention

Complaint to ICO

"My original request to NHS England was made on 21st December 2020, and I am awaiting internal review 6 months later. I would be grateful for robust action by the ICO in response to repeated and unacceptable breaches of legislative duties by this public authority."

Phase 2 – The Cabinet Office / Civil Contingencies Secretariat

22 Dec 2020 Targeted FOI request

FOI request

“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.”

2 Feb 2021 Cabinet Office response

CCS gives decision

“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.”

2 Feb 2021 Request for Internal Review

IR request

5 March 2021 Cabinet Office response

Internal Review of CCS

"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."

5 March 2021 Section 50(1) FOIA application

Application for ICO decision

8 April 2021 Leigh Day submissions to ICO

Legal Submissions

Leigh Day provide legal arguments to ICO in favour of disclosure of records of secret COBR meetings held during Exercise Cygnus.

19 Jul 2021 ICO finds in favour of CO

ICO Decision Notice

ICO finds Cabinet Office breached FOIA section 17, but that section 35 exemption protects ministerial communications during mock COBR meetings, and some policy decisions made by other officials in the 'heat of battle'.

Phase 2 – Essex County Fire & Rescue Service (Essex Local Resilience Forum)

23 Dec 2020 Targeted FOI request

FOI request

“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.”

26 Jan 2021 LRF response

LRF gives decision

“The exemptions applicable to the information you have requested are:
Section 24 of the Act - National Security.”

28 Jan 2021 Request for Internal Review

IR request

18 Feb 2021 LRF response

Internal Review of LRF

"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."

25 Feb 2021 Section 50(1) FOIA application

Application for ICO decision

19 April 2021 My submissions to ICO

Legal submissions

I provide legal arguments to ICO in favour of disclosure of LRF data on Exercise Cygnus. Meanwhile, ECFRS now says it does not hold the data on behalf of Essex LRF, having previously argued that it held the data but was exempt from disclosure on grounds of national security.

21 May 2021 ICO finds against ECFRS

ICO Decision Notice

ICO holds that ECFRS does hold information on behalf of Essex LRF, and must make a decision on disclosure.

24 Jun 2021 ECFRS provides documents

Partial disclosure

ECFRS discloses Exercise Cygnus documents: EPB summary, Evaluator's feedback form, the LRF report for Essex, and list of SCG participants.

24 Jun 2021 Request for Internal Review

IR request

"You also appear to have failed to disclose certain documents, for instance where Essex LRF - as part of Exercise Cygnus - warned about 100s of vulnerable people in social care. This is a serious omission..."

Phase 2 – Public Health England

9 Feb 2021 Targeted FOI request

FOI request

“... 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.”

18 Feb 2021 Reminder to [email protected]

Reminder to PHE

No acknowledgement

25 Feb 2021 Reminder to [email protected]

Reminder to PHE

No acknowledgement

10 March 2021 PHE breaches deadline

FOI deadline

Public Health England fails to acknowledge or respond to FOI request within statutory limit of 20 working days.

17 March 2021 Request for ICO intervention

Complaint to ICO

6 April 2021 ICO communication

Response from ICO

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.

6 April 2021 Request for Internal Review

IR request

We do not believe it is reasonable to argue that disclosure of the number of pandemic exercises threatens national security.

19 May 2021 Partial disclosure by PHE

PHE disclosure

PHE discloses existence of 11 pandemic exercises, but cites national security exemption to refuse disclosure of Typhon Report.

19 May 2021 Request for ICO intervention

Complaint to ICO

Complaint regarding PHE's refusal to disclose Typhon Report on grounds of national security.

25 Jun 2021 Leigh Day submissions

Legal Submissions

Leigh Day provide legal arguments to ICO in favour of disclosure of Exercise Typhon.

6 July 2021 Partial Disclosure

PHE response

PHE publishes most of Typhon Report, but says it “removed references to PHE emergency response processes and plans containing sensitive operational details, the release of which may have implications on PHE’s ability to respond to security incidents.”

15 Sep 2021 ICO finds against PHE

ICO Decision Notice

ICO orders PHE to publish Exercise Typhon report full

Phase 2 – Public Health England (now UK Health Security Agency)

19 May 2021 Targeted FOI request

FOI request

Ebola Surge Capacity Exercise and Exercises Alice, Northern Light, Broad Street, Cerberus and Pica.

18 Jun 2021 PHE response

PHE delays decision

15 July 2021 PHE response

PHE delays decision

"PHE is therefore extending the deadline for response to your request by another 20 working days to allow time for further consideration of the public interest test. We will endeavour to provide you with a response by 12 August 2021."

5 Aug 2021 Partial disclosure by PHE

Partial Disclosure

PHE publishes reports for Ebola and Exercises Northern Light, Broad Street, Cerberus and Pica, but copies are redacted under sections 24 and 27. PHE cites section 36(2)(b) to refuse publication of Exercise Alice.

5 Aug 2021 Request for Internal Review

IR request

Request for internal review of both refusal to publish Exercise Alice and redaction of other reports.

29 Sept 2021 Request for ICO intervention

Complaint to ICO

"PHE's refusal to disclose Exercise Alice fits into a pattern of repeated and deliberate obstruction of transparency by multiple public bodies during COVID-19. I am a NHS hospital consultant, and I believe strongly that this obstructiveness has affected NHS frontline workers' ability to prepare for pandemics in general and COVID-19 in particular, and has contributed to the tragic loss of life we have sustained during the last 18 months..."

7 Oct 2021 Partial disclosure

UKHSA disclosure

UK Health Security Agency takes responsibility from PHE for this FOI request, publishes Exercise Alice, but says, "we are continuing to work on providing a response to the remainder of your request for an internal review".