A recent ruling of the Scottish Information Commissioner has highlighted the importance of considering the impact of Freedom of Information legislation when providing commercially sensitive information to a government agency. The Scottish Information Commissioner ordered the NHS to comply with an information request and release the details of its contract with Consort Healthcare for the operation of the Royal Infirmary of Edinburgh. The entire 8,000-page contract, including all financial details, has been provided to the applicant who made the request and it is now also posted on the NHS Lothian website.
The ruling however does not cast doubt on the effectiveness of the exemptions available for confidential information, trade secrets and commercial interests pursuant to the Scottish Freedom of Information Act 2002 (or the very similar exemptions available under the UK's Freedom of Information Act 2002). Rather it serves as a warning that for the exemptions to apply the public authority cannot merely rely on general assertions by the private contractor that an entire contract is confidential or commercially sensitive. Before it denies an information request the public authority must be satisfied that the exemption applies to the specific information that has been requested.
For the private contractor this means that rather than trying to assert that the whole contract is exempted, the better approach will be to identify for the public authority the specific information in the contract that the private contractor regards as exempted. The private contractor should also take steps to ensure that in the event that the public authority does receive an information request there is an opportunity for the private contractor to consult with the public authority prior to the public authority responding to the applicant. This will ensure that if the public authority is challenged for refusing to disclose the information it will be adequately prepared to argue that its use of the relevant exemption is justified.