“1. Invoicing documents In relation to the national contracts with the private hospital sector for the provision of additional healthcare capacity, in the period March 2020 to the date of receipt of this request, could I be provided with: A) invoices, B) ‘reconciliation/validation reports’, and C) payments made; To and from Circle Health and Spire Healthcare. In effect, I would like to receive the costs submitted to NHSE by these providers (the invoices), information on how that figure was adjusted based on private activity or other parameters (reconciliation reports) and the sums of money that were ultimately paid out (payments made). I would expect to receive the original documents or datasets, rather than figures extracted from them. I would expect the information to be provided in the form of machine-readable digital documents, i.e. word documents or searchable PDF. I would prefer not to receive scanned or photocopied documents, even in digital form, that cannot be searched, but would accept an alternative format if this would incur significant processing time or costs. 2. Cost-benefit analysis dataset/s Could I also be provided data on the financial impact and value for money of these contracts, in relation to all providers on the national contract for the period March 2020 and the date of receipt of this request. At minimum, this should record the payments made to each provider each month or week. I would prefer to receive the information in its natural format, i.e. a full copy of whatever dataset the department itself uses to track and analyse the financial impact and value for money on these contracts. This could be in the form of a curated spreadsheet, an export from financial management software, exports from internal databases or reports prepared for internal consumption. And while I would expect the minimum dataset to record amounts paid to each provider, when the department carries out an analysis of the cost-benefit of these contracts I might also expect to see other fields of data such as: amounts billed, amounts paid, data on provider capacity, provider activity etc. I appreciate that some of this data may be incomplete in light of the fact contracts are only recently terminated, and in particular the validated final payments. If this is the case, I would like to receive whatever is available on the date of receipt this request. In summary, I would like to receive the same dataset that the authority uses to analyse the financial impact of these contracts. I cannot be more precise, because the department hasn’t furnished the public in general, or me personally with the information to do so.”
“The payment mechanism under the contract was a cost-based formula designed to ensure transparency, consistency, and fairness across all private providers who contracted with NHS England. It required each independent service provider to submit detailed cost and revenue information to facilitate verification by an independent auditor (KPMG). This information, particularly that relating to rent, finance costs, staffing costs, supplier contracts, capital expenditures, and private patient revenue represents detail of the most significant drivers of the independent service providers’ business models and cost-base. This detailed information is not currently in the public domain for the very reason that disclosing it would prejudice the independent service providers’ commercial interests. The reports requested contain itemisation of individual costs, including staff salaries, rental costs for sites, and other cashflow items. Even the relative ratios of these costs are valuable financial information that could be used by competitors to understand a provider’s operating model and cost base. The information contained within the reports gives insight into the operating cost base, including fixed and variable costs, which would all be valuable in the context of takeover bids and competitive tenders for services contracts. It also gives insight into staff costs, ratios and other highly sensitive information. This type of management accounting / business information is not available in the public domain, not even from published accounts, and is closely guarded by all commercial entities.” l). With reference to the commercial interests of NHSE the Commissioner noted as follows: “This is because the terms of the contracts created a clear expectation of costing materials submitted to KPMG being used solely for the purposes of the payment reconciliation process, and not for any other purpose. NHSE says that if it were to disclose this information it would be seen by providers as a breach of trust and of the letter and spirit of their contract with NHSE. In turn, this would be likely to have an adverse impact on their willingness to enter into similar arrangements with NHSE which would be prejudicial to NHS’s commercial interests as it would not be able to obtain ‘value for money’.” m). At the time of Mr Ryan’s FOIA request in April 2021 there was a real prospect of NHSE needing to enter into further arrangements comparable to those at issue in this appeal. Its ability to do so, or to do so on favourable terms, would have been harmed by the disclosure of the information NHSE has redacted from the KPMG adjustment reports. n). Mr Ryan appears to accept that he seeks the public disclosure of highly sensitive commercial information. o). The public already has ample information by which to assess what providers claimed, what they were actually paid, and how the contractual arrangements for their services and payments worked. The incremental benefit (if any) from the publication of the information redacted from these KPMG adjustment reports is much weaker than the harm that disclosure would cause. p). In relation to the request for payments made this data has all been published on a provider-by-provider, invoice-by-invoice, month-by-month basis in NHSE’s publication scheme. q). The NHSE has made clear that it has provided the only information it holds in relation to the so-called “activity dataset.”
“This is because the terms of the contracts created a clear expectation of costing materials submitted to KPMG being used solely for the purposes of the payment reconciliation process, and not for any other purpose. NHSE says that if it were to disclose this information it would be seen by providers as a breach of trust and of the letter and spirit of their contract with NHSE. In turn, this would be likely to have an adverse impact on their willingness to enter into similar arrangement with NHSE which would be prejudicial to NHS’s commercial interests as it should not be able to obtain ‘value for money’”