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Assessment

13. In assessing this complaint there are two aspects I have to consider: the substantive matter of the information requested by Mr Medawar and the general handling of his request by MCA. I turn first to the information sought by Mr Medawar. That information is contained in a discussion paper dated 11 February 2000. The paper sets out the statutory background to DTCA, recent developments in this field, and arguments for and against a change in the current arrangements. While I welcome MCA's decision to release an outline of the discussion paper to Mr Medawar, it is not clear to me what process was used to determine what and how much information should be released to him. Following the internal review of the initial decision not to release information in the discussion paper, MCA decided that although Exemption 2 and Exemption 10 did apply to the information in question, an outline of the paper could be released without harming the frankness and candour of MCA's consultations with the Commission or preempting any planned announcements or publications. I have carefully examined the original discussion paper and compared it to the letter of 29 June, which provided Mr Medawar with an outline of the paper. Although the letter of 29 June provided a fairly accurate representation of its contents there is a significant amount of information in the discussion paper that was not provided to Mr Medawar. It is not clear to me on what basis MCA have withheld that information from Mr Medawar, and I criticise them for not explaining the process or the criteria used to decide what information to include in the letter of 29 June and what information to withhold.

14. I now need to decide whether the remaining undisclosed information in the paper should be released to Mr Medawar. The remaining information consists of the following: the pharmaceutical industry's argument for a change in the law, examples of recent disease awareness campaigns by pharmaceutical companies, and comment and opinion on the present situation with regard to DTCA. The comment and opinion is potentially covered by Exemption 2 of the Code. The purpose of Exemption 2 is to allow departments the opportunity to consider matters, particularly those which are likely to prove contentious, on the understanding that their thinking will not be exposed in such a way as to restrict their deliberations by inhibiting the frank expression of opinion. I recognise the strength of the Permanent Secretary's argument that there is a need for the Commission to discuss issues at their own pace and privately to enable them to reach reliable decisions on which to formulate advice to the licensing authority. As I see it, MCA must be allowed to discuss these types of issues without having to worry that their opinions would be made available to a wider audience. I am therefore of the view that the comment and opinion contained in the discussion paper can be covered, in principle, by Exemption 2.

15. Exemption 2 does, however, incorporate a harm test: would the harm that might be caused by disclosure of the protected information be outweighed by the public interest in making it available? I do not believe it would. As the Permanent Secretary said, DTCA is currently a sensitive issue and one on which government policy is very much evolving. MCA have provided Mr Medawar with an outline of the discussion paper and I do not consider that the public interest in having access to the additional information, which contains comment and opinion, is strong enough to outweigh the potential harm to the frankness and candour of future discussion were that material to be released. I accept therefore that Exemption 2 can be applied to that part of the information containing opinion and comment that was not released to Mr Medawar in the letter of 29 June.

16. Exemption 2 is intended to protect opinion or advice, not factual information. The remaining information, which includes the pharmaceutical industry's argument for a change in the law and examples of advertising campaigns, is largely factual information. Exemption 2 does not apply to this information and I do not consider that Exemption 10 or any of the other exemptions in Part 11 of the Code can be applied to this information either. I conclude therefore that all the remaining undisclosed information other than that which can reasonably be withheld under Exemption 2 should be released to Mr Medawar.

17. How should that information be released to Mr Medawar? MCA have correctly stated that the Code requires the release of information rather than specific documents. The Ombudsman's experience has shown, however, that the simplest way in which to meet a request for information is often to release the actual document concerned. In this instance I believe that it would be helpful if MCA were now to release to Mr Medawar a copy of the original discussion paper with any exempt material edited out. Indeed I believe it would have been easier for MCA, and more helpful to Mr Medawar, if an edited version of the discussion paper had been provided in response to this request for information rather than providing an outline of the discussion paper. In any event, I see no reason why MCA should not now release such an edited version of the paper. Information which can be reasonably withheld under Exemption 2 could be excluded from that version. I so recommend.

18. I now turn to the way MCA handled Mr Medawar's request for information. I am disappointed to note that MCA took nearly twice as long as recommended by the Code to reply to Mr Medawar's first request for information and almost as long to reply to his request to have their initial decision reviewed. This is particularly unfortunate in light of the criticism MCA received on the same issue in a previous report by the Ombudsman (A. 16/99 - see Access to Official Information - Investigations Completed April - October 1999 - The Stationery Office HC21). The previous Permanent Secretary admitted in his letter of 10 August that they were outside the 20 working days recommended by the Code but said that Mr Medawar's request for information should be considered within the context of his extensive correspondence with MCA. He said that the volume and range of Mr Medawar's requests for information put a strain on MCA's resources. In making his complaint to the Ombudsman Mr Medawar also asked the Ombudsman to consider his complaint within the context of MCA's response to several other requests for information. He said he was frustrated with the way MCA handled this and other requests for information and said that if this complaint were reviewed strictly in isolation, without regard to context, problems would seem likely to continue.

19. The previous Permanent Secretary recognised the importance of the type of information held by MCA being released into the public domain and I am pleased that MCA have not sought to classify Mr Medawar's requests as voluminous or vexatious. I recognise the validity of MCA's argument that the volume and range of information sought by Mr Medawar places pressure on limited resources from across the agency and Mr Medawar should take account of the demands placed on MCA by his requests for information.

20. However, I can also sympathise with the frustration felt by Mr Medawar in gaining access to the information he seeks and I am concerned by the previous Permanent Secretary's comment that it was possible that MCA would continue to have difficulty in providing full replies to Mr Medawar within the recommended 20 working days. I should stress that the Ombudsman considers each complaint about a refusal of information on its individual merits and it would be inappropriate for me to criticise MCA in this report for their approach in handling other requests for information under the Code that have not been referred to him. However, in light of the criticisms made in this and a previous report it would be unfortunate if MCA continued to fail to meet the targets recommended under the Code. I would advise MCA, therefore, to look carefully at the way they deal with requests for information under the Code, and the processes used to decide what information can be released and in what format. In reply, the present Permanent Secretary said that the MCA would review its internal procedures for handling requests under the Code as I had suggested.

Conclusion

21. I found that MCA were justified in refusing to disclose information containing opinion and comment to Mr Medawar. However, I am pleased that they have accepted my recommendation that an edited version of the discussion paper can now be released, and that they have sent a copy to Mr Medawar. I also welcome the steps MCA are taking to review their internal procedures for handling requests under the Code.

28 December 2000

D K A Reynolds

Director of Investigations duly authorised under section 3(2) of the Parliamentary Commissioner Act 1967

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