Question 1

You asked - Please provide all emails sent between NHS Business Services Authority and Stonewall between these two dates. (01/01/2022 – 31/03/2023)

Our response - Due to the number of files these cannot be uploaded to the Open Data Portal. If you require access to these files, please contact us at foirequests@nhsbsa.nhs.uk quoting the reference number FOI-01299.

Please read the below notes to ensure correct understanding of the data.

Please be aware that I have decided not to release staff names and contact details as this information falls under the exemption in Section 40 subsections 2 and 3(A)(a) of the Freedom of Information Act.

This is because it would breach the first data protection principle as:

a) It is not fair to disclose these people’s personal details to the world and is likely to cause damage or distress to staff

b) These details are not of sufficient interest to the public to warrant an intrusion into the privacy of those staff.

Please click the below web link to see the exemption in full.

https://www.legislation.gov.uk/ukpga/2000/36/section/40

In addition, some emails and attachments which relate to Stonewall’s training course content and newsletters have not been disclosed as they are exempt under Section 43(2) of the Freedom of Information Act 2000, as releasing this information would adversely affect the commercial interests of NHSBSA.

Section 43(2) is a prejudice based ‘qualified’ exemption and is subject to the public interest test. This means that not only does the information have to prejudice one of the purposes listed, but before the information can be withheld, the public interest in preventing that prejudice must outweigh the public interest in disclosure.

Prejudice Test:

The PDFs are the training course content provided by Stonewall in relation to training which NHSBSA paid to receive. Disclosure of the course content would therefore be likely to prejudice Stonewalls’ commercial interests as it would allow other organisations to use the course content and capitalise from this by offering it as a training package to other organisations and would also allow for other organisations to utilise the training content without paying Stonewall for this.

Newsletters form part of the paid membership to Stonewall and therefore disclosure would harm Stonewall’s commercial interests be disclosing these in the public domain.

Public Interest Test:

Considerations in favour of disclosure:

• The inherent public interest in openness and transparency of public authority dealings.

Considerations against disclosure:

• Stonewall have been consulted and they have confirmed that they believe disclosure would harm their commercial interests. Disclosure of the information in the public domain would put Stonewall’s commercial interests at risk because it would enable competitors or other organisations to use the course content and capitalise from this by offering it as a training package to other organisations.
• Disclosure would also allow other organisations to utilise the training content without paying Stonewall for this.
• The inherent public interest in avoiding the prejudice specified in the exemption. 

Conclusion:

NHSBSA recognised that there is a public interest in the disclosure of the information which facilitates the accountability and transparency of public authorities; however, there is also a public interest in maintaining the commercial interests of Stonewall.

Given that the definition of ‘public’ under the Freedom of Information Act 2000 is considered to be the public at large, rather than just the individual applicant and that ‘public interest’ is not necessarily the same as what interests the public, it is considered that to release this commercially sensitive information into the public domain is likely to prejudice the commercial interests of NHSBSA which is not outweighed by the public interest for disclosure.

Question 2

You asked - Please provide information about all moneys paid to Stonewall by the NHS Business Services Authority between these two dates.(01/01/2022 – 31/03/2023)

Our response -

Time Frame

1 January 2022 to 31 March 2023

Data

• January 2022 – London Workplace Conference Event - £240
• February 2022 - Allies training - £480
• September 2022 - Preparing for an LGBTQ+ Inclusive Black History Month event - £100
• October 2022 - Membership - £2575
• October 2022 - Bi Visibility - Training £100
• October 2022 - Mental Health - Training £150
• October 2022 - Understanding LGBTQ+ - £100
• February 2023 - Allies Training - £360
• March 2023 - Stonewall Conference - £620

Question 3

You asked - Please provide the NHS Business Services Authority's submission to Stonewall's Workplace Equality Index for 2023 which resulted in the NHSBSA coming 4th in the Stonewall Top 100 Employers 2023.

Our response - The NHSBSA does hold the requested information which is attached. You will note within the attached that some of the requested information has been redacted and is blocked out. This is because it is exempt from disclosure and the following is an explanation of each exemption.

Section 31(1)(a)

Under section 31(1)(a) of the Freedom of Information Act (FOIA) 2000, information is exempt from disclosure where it would or would be likely to prejudice the prevention or detection of crime.

As this is a prejudice-based exemption, the NHSBSA must demonstrate the harm that disclosure would have. The NHSBSA has applied this exemption to URLs, toolbars and taskbars visible in the screenshots provided to the WEI. This is because it could increase the number of phishing attempts and provides information which could be used to create malicious versions of sites.

This exemption is also subject to the public interest test which I have detailed below:

Considerations in favour of disclosure

• There is a public interest in increasing the transparency of public authorities which increases public trust

Considerations against disclosure

• There are inherent public interests against disclosure reflected in the harms in the qualified, prejudice-based exemptions in FOIA.
• Disclosure would allow would-be cyber criminals to target their attacks in a way which allows an increased chance of success. A successful cyber-attack could lead to:

a loss of personal data, some of which is sensitive, and confidential business information Substantial damage to the NHSBSA’s reputation and distress to data subjects and ** Impact on the NHSBSA’s ability to operate effectively and provide public services, which would negatively impact the general population

Balancing of the Public Interest Test

In conclusion the NHSBSA believes that the public interest lies in withholding the information because there is substantially more public interest in our systems remaining safe and secure.

Section 43(2)

Information is exempt from disclosure under section 43(2) if its disclosure would, or would be likely to, prejudice the commercial interests of any person, including the NHSBSA. This exemption has not been applied to information which is already in the public domain but has been applied to information which:

• is about the NHSBSA’s wider business, but does not concern LGBTQ+ matters
• relates to LGBTQ+ matters but is information not in the public domain and would harm the commercial interests of the NHSBSA if disclosed

This exemption is a prejudice based ‘qualified’ exemption and is subject to the public interest test. This means that the disclosure of the information would be likely to prejudice our commercial interests and that the public interest in applying the exemption must outweigh the public interest in disclosing the information.

In this case we have identified that the commercial interests that would be likely to be harmed is the NHSBSA’s. This is because the process of submitting to Stonewall’s WEI is competitive with hundreds of organisations competing to achieve the highest rank possible. Our ranking was achieved through hundreds of hours of work and implementing improvements to our processes. The employment market is very competitive for employers, and prospective employees look at organisations as a whole, including their approach to inclusion and how reflective the organisation is of them. By placing our submission into the public domain, we consider the risk of other organisations, including non-public authorities, from copying our submission. In turn this will reduce our attraction as an employer and would be likely to impact our ability to recruit effectively and have a diverse colleague base, resulting in a detrimental impact on delivering our strategic goals.

Considerations in favour of disclosure

• The inherent public interest in openness and transparency of public authority dealings
• There is a particular interest in understanding organisational progress concerning LGBTQ+ inclusivity
• Disclosure of the information could promote sharing of good practice and further LGBTQ+ advocacy

Considerations against disclosure

• There are inherent public interests against disclosure reflected in the harms in the qualified, prejudice-based exemptions in FOIA
• The submission is provided as part of a competitive process and others, such as non-governmental organisations (who are not subject to FOIA) would be likely to gain a competitive advantage over NHSBSA by having access effectively to copy its submission and policies. This would impact on the ranking NHSBSA receives and being seen as an employer of choice. Given the very high value and complexity of work that NHSBSA does to support the activities of the wider NHS, it’s in the public interest that it isn’t prejudicing its ability to attract, recruit and retain the best talent and a diverse workforce
• Stonewall shares any identified practice through its account managers and resources therefore any identified best practice will be shared appropriately and with agreement from the NHSBSA. This has the same outcome as disclosing the information but doesn’t harm the NHSBSA’s commercial interests; any public interest in disclosure can therefore be met in other ways
• NHSBSA makes some information publicly available, and so there’s already a significant amount of transparency around this information, which is being provided in Diversity and Inclusion Strategy and in annually published Diversity and Inclusion Reports. The public interest isn’t better served by disclosing the limited withheld information within the WEI report
• NHSBSA’s ranking in the Stonewall Index displays its organisational progress on this work and lists it as an employer of choice. It’s in the public interest, reflected in its approved business and strategic plans, that it demonstrates continuous improvement on equality issues within its workforce and the way it works; disclosing the information may jeopardise its ranking and therefore undermine future work in this space
• Disclosing the information would likely lead to negative discourse which would also result in taxpayers’ money having to be spent on recruitment campaigns to replace staff who otherwise would have been motivated by NHSBSA’s high Stonewall ranking. This would consequently impact NHSBSA’s ability to attract and retain talent and partner with external organisations and individuals who work in diversity and inclusion space
• NHSBSA staff would be discouraged from participating in forums and activities designed to promote diversity at work. There is a strong public interest in promoting diversity and plurality of thought, and staff feeling confident to express views. This promotes better decisions, reflective of broader society, including groups experiencing wider inequalities

Balancing of the Public Interest Test

Therefore, the NHSBSA considers that release of this information into the public domain would prejudice the commercial interests of NHSBSA which is not outweighed by the public interest for disclosure.

Section 40(2)

Information is exempt under section 40(2) of the FOIA where the information is personal data of another individual and a condition under section 40(3A) is satisfied. In this case the relevant condition is section 40(3A)(a).

Some of the information is special category data. Special category data is particularly sensitive and therefore warrants special protection. It can only be processed, which includes disclosure in response to an information request, if one of the stringent conditions of Article 9 can be met. As none of the conditions required for processing special category data are satisfied there is no legal basis for its disclosure. Processing this special category data would therefore breach principle (a) and so this information is exempt under section 40(2) of FOIA.

The NHSBSA has applied section 40(2) to personal data of individuals working for the NHSBSA mentioned in the submission, former employees, some external speakers and some dates where this would lead to the reidentification of individuals.

Data Queries

If you have any queries regarding the data provided, or if you plan on publishing the data please contact foirequests@nhsbsa.nhs.uk ensuring you quote the above reference. This is important to ensure that information is not misunderstood or misrepresented.

Reusing the data and copyright

If you plan on producing a press or broadcast story based upon the data please contact communicationsteam@nhsbsa.nhs.uk. This is important to ensure that the information is not misunderstood or misrepresented.

The information supplied to you continues to be protected by the Copyright, Designs and Patents Act 1988 and is subject to NHSBSA copyright. This information is licenced under the terms of the Open Government Licence detailed at: http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/

Failure to do so is a breach of the terms of the licence.

Information you receive which is not subject to NHSBSA Copyright continues to be protected by the copyright of the person, or organisation, from which the information originated. Please obtain their permission before reproducing any third party (non NHSBSA Copyright) information.