NHS Greater Manchester Integrated Care Board (NHS GM) v The Information Commissioner & Anor

1. Beacon Counselling Trust (“BCT”) (a not-for-profit organisation funded by the gambling industry to address the harm caused by gambling addiction) was concerned to understand the likely approach to the commissioning of services for treatment of gambling addiction by the NHS Greater Manchester Integrated Care Board (NHSGM) which would be responsible for the commissioning of such services for the population of Greater Manchester. On 25 April 2024 solicitors instructed by Beacon made a comprehensive request for information of NHS Greater Manchester Integrated Care Board: " Please provide copies of all correspondence or documentation making reference to BCT that: (i) have been made or created by individuals acting on behalf of your organisation; or (ii) have been sent to such individuals by third parties, including the NHS and/or integrated care boards. Such correspondence or documentation may include, but shall not be limited to: • all communications and documentation made by or sent to [NAME REDACTED]; • information held or communicated via any platform or communication medium; • meeting minutes; • emails; • video recordings; and • social media posts and/or communications. 'Reference to BCT' shall for these purposes include reference or links to any BCT employees or contractors, the National Gambling Support Network, BCT's lived experience volunteers and Betknowmore UK (BCT's aftercare partner) ."

2. Following clarification of the request in which BCT confirmed the correspondence will be in the context of discussions about the commissioning and provision of treatment, support and health promotion/education services for gambling addiction/gambling related harm; the NHS GM replied on 7 June refusing the request relying on s21 FOIA – the information was available by other means; and s36 FOIA – prejudice to the effective conduct of public affairs. The ICB maintained this position on internal review and BCT complained to the Information Commissioner.

3. On 13 February 2025 the IC issued his decision notice IC-333268-M6N5. In this he upheld the reliance on s21, finding that the information withheld under section 21 comprises email correspondence sent to email addresses within BCT and its partner Betknowmore as well as a presentation that had been prepared by BCT itself; accordingly the ICB was entitled to apply section 21 to refuse this part of the request.

4. He found that the ICB could rely on s36(2)(b)(i), 36(2)(b)(ii), and s36(2)c. In considering whether the qualified person’s opinion (“QPO”) was an opinion that could reasonably be held he noted that withheld information comprised email trails of discussions and opinions of third parties which have been shared, as well as incomplete information that the ICB did not have consent to share. In considering whether the qualified person’s opinion that disclosure would cause prejudice to the effective conduct of public affairs the IC accepted the ICB’s argument that it was: “ important that some matters discussed in private discussions remain private to protect confidentiality. Specifically where the issues relate to matters relating to the commercial interests of third parties, contractual discussions, advice from external sources. In these circumstances NHS GM argues it is important for staff to be able to discuss matters formally but freely and frankly to ensure that issues are fully debated, and final decisions are robust.”

5. The IC concluded that the qualified person’s opinion was reasonable. In then considering the material in question the IC distinguished between the contents of various email chains and the attachments to those emails he concluded that the public interest favoured disclosure of some of this information; ordering “ With the exception of the attachments containing the draft action plan and draft memorandum of understanding, disclose the information it has relied on section 36 of FOIA to withhold, with personal data redacted as appropriate .”

6. Both BCT (on 12 March 2025 (FT/EA/2025/0115)) and ICB (on 13 March 2025 (FT/EA/2025/0113)) appealed against a decision and the two appeals have been considered together. ICB sought not to disclose the material within s36 where the IC considered the public interest favoured disclosure - various emails, and BCT sought disclosure of the draft action plan and memorandum of understanding. FT/EA/2025/0113 NHS GM appeal

7. In its appeal against the disclosure of the email chains NHS GM argued that “The threshold question for the Tribunal is whether the opinion of the qualified person (that any of the listed prejudice or inhibition would or would be likely to occur) is “reasonable”. This means “ substantively reasonable and not procedurally reasonable ” and that more than one conflicting opinion may be reasonable, and that qualified persons, whose seniority makes them well placed to make a judgment which requires knowledge of the workings of the authority, the possible consequences of disclosure and the ways in which prejudice may occur, and as such their opinion is entitled to a measure of respect. NHS GM concluded that: Mr Fisher CBE is the individual entrusted by Parliament, who has the relevant institutional understanding, to opine on the likely effects of disclosure of the relevant information. The conclusion he reached was plainly one which was open to him, and the rationale is set out concisely in the populated form.

8. In considering the balance of public interest the task was to consider the actual harm or prejudice that the proposed disclosure would (or would be likely to) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote.

9. The ICB argued that the information arose in the context of a policy discussion about developing a shared approach to gambling-related harms. There was consideration of the priorities between services and which providers should be engaged and it was an important policy issue and needed a safe space in which ideas could be explored in order to optimise any decisions. If there was an expectation of disclosure and the consequent chilling of the free-ranging discussion the quality of decision-making would suffer as participants would be inhibited from making contributions and ensuring that relevant considerations and arguments are ventilated and tested, so that the best possible the interests of the members of the public who rely on such decisions, including those directly and indirectly affected by gambling, suffer. FT/EA/2025/0115 BCT appeal

10. In its appeal against the decision to withhold the two draft documents attached to emails which had been prepared by third parties BCT argued that the qualified person’s opinion had failed to identify an applicable interest and also failed to explain why the harm would occur; accordingly the IC had not been provided with enough information to determine that the QP’s opinion was reasonable. In considering the public interest BCT submitted: these documents are key to the public being able to understand how GM ICB (and for that matter other NHS trusts more generally) refers patients to specific organisations and whether that process is in line with NHS England central themes and guidelines. BCT submits that it is, factually, in the public interest to be able to understand this process in full. For example, we might expect any such ‘action plan’ or ‘memorandum of understanding’ to follow those themes and guidelines and neither create a preferential referral process with the relevant third-party nor preclude referrals to other partners and it is in the public interest that this is properly open to public scrutiny. There is serious concern in the sector that GM ICB and other NHS trusts are deliberately seeking to avoid referring patients to BCT and other voluntary, private, and charitable support sector providers, and it must be in the public interest to have sight of any documentation that sets out the basis (whether draft or executed final version) on which an NHS trust will refer patients to a particular provider or set of providers

11. BCT challenged the significance of the absence of consent to disclose, emphasised that potential FOIA disclosure was a part of doing business with public authorities and further that disclosure would assist in understanding the approach the ICB would take to gambling harms referrals.

12. In responding to this appeal the IC submitted that the argument that the opinion had been given in general terms was not sufficient to challenge its reasonableness: “The QP opinion was reached after: the relevant information was both shown and described to the qualified person; the qualified person was presented with both reasons for and against the conclusion that prejudice/inhibition would or would be likely to occur; and the qualified person was presented with wider relevant factors. The qualified person then reached their opinion and provided reasons. The Commissioner submits that the QP opinion was reasonable.”

13. With respect to the public interest the IC considered that BCT’s claim that the ICB was seeking to avoid making referrals to them was a private not a public interest and that the question of the absence of consent to disclosure was background information not part of the QP’s decision.

14. In supporting the IC’s decision the ICB argued that: The release of the two draft documents, which were provided to the Second Respondent in confidence, would inhibit the openness of decision makers necessary to agree appropriate service provision for patients it serves and would intrude on the safe space required for developing service models. Disclosure of the information would have led to a large number of queries and prejudice the trust between the relationship with Government bodies, NHS provider organisations and third parties. This would cause a diversion of resources to combat the increased scrutiny and divert resources to manage the impact of disclosure, disrupting important services that the Second Respondent provides. Evidence

15. In support of its position a Dr Bering a psychologist employed by NHSGM submitted a witness statement setting out the background. At the time the request was made there were policy discussions as to whether a levy on gambling firms would be introduced by the government to support the provision of services for those affected by gambling; a statutory levy has now been introduced. At the time of the request BCT did not receive public funding to provide services in the Manchester area, it was unclear how any such levy funded services would be commissioned or configured. The individual identified in the request advised the Greater Manchester Combined Authority (a local government body) on public health campaigns on gambling. Dr Bering cooperated with her on the clinical aspects of the assembly of a support network for addressing gambling harms. He explained: “The emails in question relate to private discussions between others, including from GMCA, given in confidence. Discussions took place in a safe space privately between different bodies, to consider public policy, the future commissioning model, the appropriate services to be commissioned and possible tender processes should a levy be introduced to fund services relating to gambling-related harm. When discussing commissioning and procurement, free and frank discussions are required to allow opinions to be shared during discussions.”

16. He further indicated: “There is a need to ensure that those involved can have open and honest discussions with others about procurement and commissioning with the ability to discuss options, criteria and pathways being considered between different bodies before launching procurements. The information contained within these discussions could be commercially sensitive and could have impacted future procurements. I believe it is in the public interest that efforts by the ICB and GMCA to prevent, minimise and treat harm are not prejudiced.”

17. The qualified person’s opinion was that of the Chief Executive. It was prepared on a standardised document which required the qualified person to consider the material and the arguments for and against disclosure. Consideration

18. The first issue to be resolved is the status of the QPO. While BCT has challenged the terms in which it is expressed the chief executive who discharged the role of QP had the material before him, his attention was drawn to the issues of the value and risks of disclosure. He then, from a position of considerable knowledge of the organisation and its context, came to a conclusion that the material should not be disclosed. The tribunal is satisfied that this was a reasonable conclusion and weight must be given to that finding.

19. BCT has argued that the full process of how the ICB refers patients to different providers and whether it is in accordance with the central approach of the NHS will be revealed by the disclosure and there is a significant public interest in transparency on this issue. The difficulty with that argument is that while how the ICB would commission services in the then envisaged new framework would be significant; it is clearly an important policy issue, and those involved require a safe space to speak freely in order to ensure that relevant considerations and arguments are ventilated and tested, so that the best possible decisions can be reached – if and when the new framework is implemented. The interest that BCT is seeking to advance is its own specific interest, there is minimal public interest in the disclosures which it seeks of the two withheld draft documents.

20. The appeal by BCT therefore fails.

21. The appeal by NHSGM seeks to protect the safe space for co-operation between the various public bodies developing their shared understanding of the challenges and difficulties they foresee. If there were an expectation of disclosure the consequent chilling of the free-ranging discussion would impact on the quality of decision-making. Also, the quality of mutual understanding and co-operation between participants would suffer as they would be inhibited from making contributions and ensuring that relevant considerations and arguments are ventilated and tested. The IC erred in failing to recognise the substantial public interest in maintaining the quality of that interaction and the risks to the interests of the members of the public who rely on such decisions, including those directly and indirectly affected by gambling.

22. The appeal by NHSGM succeeds. Signed Date: Hughes 8 February 2026