Boost for Andy Burnham in row over emails released by health department - The Guardian

The department's permanent secretary has apologised to Andy Burnham because of the way emails about him were released. Photograph: Andy Rain/EPA

Andy Burnham, the former Labour health secretary, was given a boost in his public fight with his successor Jeremy Hunt over claims he covered up NHS failings before the last election.

Hunt has been involved in a row provoked by Conservative allegations based on a cache of emails released from inside the health service. But last night the Department of Health permanent secretary Una O'Brien said in a letter to Burnham that there had been an unacceptable lapse and the protocols were not properly observed over the way in which 40 emails concerning Burnham had been released to a Tory MP.

She said she was "apologising on behalf of her department and the Care Quality Commission [CQC] for this lapse".

The Conservatives claim the emails show that Labour tried to stop the watchdog from informing the public about failings at Basildon University hospital, where patients were dying needlessly in dirty wards.

O'Brien was forced to intervene after Burnham rang the cabinet secretary, Sir Jeremy Heywood, last week to complain that he had been given no notice that the documents – including 40 emails covering his stewardship of the Department of Health – were to be released under a freedom of information request.

The emails were obtained under the Freedom of Information Act by Stephen Barclay, a Conservative MP, after repeated requests to the commission.

At no point was Burnham consulted about their release, and when they were passed to newspapers he was given four hours to prepare a response. The emails had been released by the commission, which is chaired by a former deputy chairman of the Conservative party, David Prior.

O'Brien said: "My investigations have revealed that this was a genuine oversight on the part of officials, but nonetheless unacceptable."

She said she was writing to relevant officials throughout the health departments and its agencies to reissue the protocols on the release of FoI requests and directing all to act within the protocols.

The row comes as Burnham threatens legal action over a tweet by Hunt about the emails stating: "@andyburnhammp's attempts to cover up failing hospitals".

Burnham wrote to Hunt demanding the health secretary delete the tweet, promising the matter would be brought to a close if he did so. He also sought assurances that Hunt's special advisers had not been involved in decisions about the release of the emails, including contacting the leadership or officers of the CQC.

On Monday Hunt started to backtrack over the tweet, writing to Burnham: "My tweet referred to the revelations about political pressures on CQC over the publication of process for reports of failures in hospital care, and was not a suggestion that you personally covered up evidence of poor care. Whatever our differences on health policy, I do not doubt your personal integrity."

But Burnham said the health secretary's explanation was difficult to understand since the tweet clearly stated he had been involved in a cover up of evidence of poor care. "I am left with a clear inconsistency between what you say in your letter and what you say in your tweet."

Burnham stressed that he believed in transparency and has previously allowed the release of correspondence relating to his time as health secretary "At the same time", he said, I have a right to insist that documents are released in a proper manner."

Burnham claims he is the victim of a year-long attempt by the government to show he covered up failure, and the political goal is to neutralise Labour on health at the next election.

The Department of Health said last night: "There is absolutely no truth to claims ministers or civil servants were involved in the release of emails."