Thank you for your request for information about the following:

1. Please send me your latest submission to the Stonewall Workplace Equality Index? Could you also provide the Stonewall response to your submission?
2. Please send me all emails between your staff and Stonewall from 1 Jan 2023 to 1 Jan 2024?
3. Please could you send me a summary of all payments made to Stonewall from 1 Jan 2022 to 1 Jan 2024?

Your request was received on 10 February 2024 and I am dealing with it under the terms of the Freedom of Information Act 2000. Please accept my sincerest apologies for the delay in this response. This was due to an administrative error. The NHSBSA takes its responsibility to respond to FOI requests within the required timescales seriously and unfortunately on this occasion we have not been able to do so.

Response

Question 1

The NHS Business Services Authority (NHSBSA) is unable to provide a copy of the full submission to the Stonewall UK Workplace Equality Index (WEI) 2023. This is because the majority of the information falls under the exemption in Section 22 of the FOIA.   To explain, the requested submission documentation is currently being considered by the Information Commissioner’s Office (ICO). The NHSBSA will consider the ICO’s decision notice and publish the submission on its Open Data Portal following receipt of this.     The NHSBSA has identified that parts of the submission are however exempt under the following sections of FOIA and will not be released: 

• 31(1)(a) as the NHSBSA has identified information contained in the submission which if released would or would be likely to prejudice the prevention or the detection of crime;
• 36(2)(b)(iii), 36(2)(c) as parts of the submission would in the view of the qualified person prejudice the free and frank provision of views and the effective conduct of public affairs;
• 40(2) as parts of the submission identify or have the potential to identify individuals;
• 43(2) as disclosure of parts of the submission would be likely to prejudice the NHSBSA’s commercial interests.

Sections 31, 36 and 43 of the FOIA are qualified exemptions. This means that they are subject to the public interest test and I have combined the various key factors in the following table:    Factors in favour of disclosure 

• Disclosure could promote equality and improve the experience of LGBTQ+ people in the workplace. 
• There is a public interest in increasing the transparency of public authorities which increases public trust. 
• There is a particular public interest in understanding organisational progress concerning LGBTQ+ inclusivity.
• The NHSBSA recognises that there has been some media and political interest in aspects of Stonewall’s views as a campaigning
  organisation. Disclosure helps to demonstrate the objective and 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 reasonable approach that the NHSBSA and Stonewall have taken to demonstrate, assess and accredit the NHSBSA as a good place to work.
• Disclosure of information could further demonstrate that the NHSBSA is an attractive employer for diverse individuals.
• Some other organisations have published their Stonewall submissions (whether voluntarily or under FOIA). 

Factors in favour of maintaining the exemptions 

• There is a public interest against disclosure of information where it would prejudice the free and frank provision of views and the effective conduct of public affairs 
• Our ranking in the Stonewall Index displays our organisational progress on this work and lists us as an employer of choice. It is in the public interest, reflected in our approved business and strategic plans, that we demonstrate continuous improvement on equality issues within our workforce and the way we work; disclosure of the information may jeopardise our ranking and therefore undermine future work in this space. 
• The submission is provided as part of a competitive process and others, such as non-governmental organisations (who are not subject to FOIs) would be likely to gain a competitive advantage over the NHSBSA by having access to effectively copy our submission and policies. This would impact on the ranking the NHSBSA receives and being seen as an employer of choice. Given the very high value and complexity of work that the NHSBSA does to support the activities of the wider NHS, it is in the public interest that we are not prejudicing our 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 the disclosure of the information but does not harm the commercial interests of the NHSBSA; any public interest in disclosure can therefore be met in other ways. 
• The NHSBSA makes some information publicly available, and therefore there is 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 is not better served by disclosure of the limited withheld information within the WEI report. 
• Disclosure would allow would-be cyber criminals to target their attacks in a way which allow an increased chance of success. A successful cyber attack could lead to:
  a) a loss of personal data, some of which is sensitive, and confidential business information;
  b) Substantial damage to the NHSBSA reputation and distress to data subjects; and
  c) Impact on the NHSBSA’s ability to operate effectively and provide public services, which would negatively impact the general population.
  None of the above are in the public interest. 
• The NHSBSA is currently responding to the ICO in relation to the requested information and it would not be in the public interest to preempt this decision.     The information in the submission is also current, which weighs against disclosure. We consider that the balance of the public interest favours non-disclosure of the withheld information within the WEI submission.

Turning to your request for the feedback that the NHSBSA received on its submission, I can confirm that the NHSBSA does hold the requested information. However, the NHSBSA considers this information exempt from disclosure under Section 43(2) of the FOIA as releasing this information would be likely to prejudice the commercial interests of NHSBSA.    A detailed explanation along with consideration of the prejudice test and public interest test is available from FOI-01434 - Datasets - Open Data Portal BETA (nhsbsa.net)  

Question 2

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-01737.

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 Stonewall’s 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:

The 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 the NHSBSA which is not outweighed by the public interest for disclosure.

Question 3

Under Section 21 of the Act, we are not required to provide information in response to a request if it is already reasonably accessible to you.

Payments made to Stonewall between 01/01/2022 and 31/03/2023 have been published previously and are available from the following link FOI-01299 - Datasets - Open Data Portal BETA (nhsbsa.net) No additional payments to Stonewall were made between 01/04/2023 and 01/01/2024.

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 the figures are not misunderstood or misrepresented.

If you plan on producing a press or broadcast story based upon the data, please contact This is important to ensure that the figures are 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/

Should you wish to re-use the information you must include the following statement: “NHSBSA Copyright 2024” This information is licenced under the terms of the Open Government Licence:

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.