The Scottish Information Commissioner has ordered NHS Lothian to publish its PFI contract with Consort for the building and maintenance of the Edinburgh Royal Infirmary. The information is now available on NHS Lothian's website. This publication arose as a result of a Freedom of Information (Scotland) Act ("FOI(S)A") request which was refused by NHS Lothian. Their view was that the contract was commercially confidential and would lead to litigation by Consort for damages based on this breach of confidence.
The approach of Kevin Dunion, the Scottish Information Commissioner, was that in order to benefit from the breach of confidence exemption, the public authority had to specifically argue which particular pieces of information would breach this confidence and why. NHS Lothian adopted a blanket approach to the entire contract (over 8,000 pages) which incurred the wrath of Mr Dunion who also stressed that information arising as a result of negotiation between a public and private body could not be "information obtained by a Scottish public authority from another person" and so would not be exempt from the FOI(S)A.
In the scathing decision, Mr Dunion explained that for a public body to assert the confidentiality exemption they would need to provide:
- "Precise details of the specific information believed to fall within the scope of the exemption;
- Details of why that specific information should be considered to have been obtained from another person;
- Details of why the information should be considered to have the necessary quality of confidence;
- Evidence that the information was received in circumstances which imposed an obligation to maintain confidentiality; and
- Details of why disclosure of the information would cause damage to the person who communicated the information".
Mr Dunion also stressed that it is for the public authority to decide whether to comply with a Freedom of Information request and they cannot abdicate that responsibility in favour of the private body that is their contracting partner.
This approach makes it clear that not only do public authorities need to go through every page of the information requested and form a view on whether it is exempt from disclosure, but also that private contractors need to be aware that their contracts are publicly available. It should be remembered that a public authority might not need to comply with the request if it would cost them (currently) over £600.00 to do so.
From a practical standpoint, it is essential for public authorities to ensure that their contracts contain the widest possible liberty to address Freedom of Information requests so as to meet their statutory obligations. The policy appears to be that where a private body receives public funds, it should be alive to the Freedom of Information Acts negating any confidentiality it may wish to maintain. Although it should be pointed out that NHS Lothian may have been able to use trade secrets as a possible ground for refusing the request, although they failed to do so.
Given that the UK Ministry of Justice is currently consulting until 1 February 2008 on widening the scope of the UK Freedom of Information Act to private bodies receiving public funds, this trend is set to continue.
Both public and private bodies alike should take out of this decision that their contracts may be disclosed and with them any commercially sensitive information they contain. If they did not want this information to be disclosed they need to deal with this proactively both at the negotiation stage and when the request first comes in. Grappling with Freedom of Information issues early on can both manage the disclosure and avoid PR problems associated with a negative decision from the Scottish Information Commissioner.