Legal campaigners challenge UK.gov decision to redact NHS-Palantir contract

British legal campaigners are preparing to take on UK government over its decision to redact swathes of a contract describing how Palantir would work with the country's enormous public health system, the NHS, under the controversial Federated Data Platform.

When it was published on the eve of the holiday season in December last year, the Palantir contract drew criticism owing to sections relating to data privacy being heavily censored.

In its pre-action letter, The Good Law Project, a political non-profit company, said the redactions mean the public is “unable properly to understand or scrutinise the arrangements under the contract, including but not limited to the issue of how personal data will be handled."

The legal campaigners pointed out that NHS England's decision to award the FDP contract to Palantir had been pilloried by doctors' union the British Medical Association as well as Amnesty International, an international non-governmental organization focused on human rights.

In its pre-action letter, The Good Law Project said of the FDP contract: "Almost the entirety of the four pages of provisions in Clause 23 which is headed 'Protection of Personal Data' has been redacted from the FDP Contract. Further, the vast majority of the schedules to the FDP Contract, which run to no fewer than 500 pages in total, have been redacted."

"Transparency and accountability of public service delivery data and information builds public trust and confidence in public services. It enables citizens to see how taxpayers’ money is being spent; and allows the performance of public services to be independently scrutinised. It also supports the functioning of competitive, innovative and open markets by providing all businesses with information about public sector purchasing and service providers’ performance," it said.

Redacting large chunks of the contract was not just completely unacceptable but unlawful, it added: "Government policy requires public bodies to give reasons when contracts are redacted, but despite the massive scale of the redactions in Palantir's contract no reasons have been given.

"We have now launched legal proceedings against NHS England to uncover what these redactions conceal," it said.

NHS England — which began its relationship with Palantir during the pandemic with the award of a £1 contract — said the FDP would provide software to link NHS trusts and regional systems and, offer a consistent technical means of linking data that is already collected for patient care.

"Clinicians will easily have access to the information they need to do their job – in one place – freeing up time spent on administrative tasks and enabling them to deliver the most appropriate care for patients," it said.

Critics have argued that since Palantir’s relationship with NHS England began during the pandemic, allowing it to win a string of contracts without competition — winning £60 million in work in the process — it was at an unfair advantage in the competition for FDP deal which could be worth £330 million ($412 million) over seven years.

An NHS spokesperson told The Register today: “NHS England has received a pre-action protocol letter and will be responding formally in due course.”

In a briefing published about the FDP contract at the end of 2023, NHS England said: "Key lessons have been learned from previous data programmes including the need for a) transparency and b) data to be held in secure environments with the correct checks and balances in place. We are ensuring that trust and transparency lessons have been learnt both in terms of design, but also in how we act, for example the timely publication of information and documentation, open publication of use cases and Data Protection Impact Assessments."

NHS England said the FDP would provide software to link NHS trusts and regional systems and offer a consistent technical means of linking data that is already collected for patient care.

"Clinicians will easily have access to the information they need to do their job – in one place – freeing up time spent on administrative tasks and enabling them to deliver the most appropriate care for patients," it said.

The Good Law Project has now called on NHS England to re-publish the contract by 26 February 2024 either without redaction, or with only redactions in accordance with public policy, including the relevant parts of the Freedom of Information Act.

In December, health data campaigners began preparation for a separate legal challenge. The group led by Foxglove alleged there is no lawful basis to create the FDP, as described in procurement documents, within the current legal directions NHS Digital uses to obtain and share data within the NHS.

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At the time, an NHS spokesperson said the Foxglove pre-action letter "fundamentally misunderstands how the Federated Data Platform will operate and is totally incorrect."

Palantir won the NHS FDP deal in November, which the world's largest healthcare provider said at the time is vital to recover from a pandemic backlog. After delays to the procurement, NHS England said the data analytics tech from Palantir would support the FDP, designed to join up information held in separate NHS systems to help solve the problems faced by the taxpayer-funded organization.

The winning bid was supported by consultancies Accenture and PwC, as well as NECS, an NHS-owned service provider, and Carnall Farrar, a healthcare consulting and data firm. ®