Commissioner
Kevin Dunion said that NHS Lothian could not refuse May Docherty’s
request for the contract to build and operate the Edinburgh Royal
Infirmary on the grounds of commercial confidentiality. He ordered
the release of the contract between NHS Lothian and Consort.
Consort has said that it would consider the release of the
contract an actionable breach of confidence, but Dunion said that
the idea that the entire contract was confidential could not be
right.
“[NHS Lothian] sought to claim that a blanket exemption of
confidentiality covered every one of the thousands of pages of this
detailed contract,” said Dunion. “However, other than broadly
indicating why Consort Healthcare did not wish the information
disclosed, NHS Lothian provided me with virtually no arguments to
justify withholding the contract. As a consequence I have ordered
that the contract must be disclosed."
Dunion went further late last week when addressing a conference
on FOI in Edinburgh. He said that he wanted to make sure that
companies involved in the increasing privatisation of public
services were accountable to the public.
“When council housing is transferred to a housing association or
when a charitable trust is established to run local authority
leisure and recreation services, local people and employees may
find that they have lost freedom of information rights at a stroke,
as these bodies are not regarded as public authorities,” he
said.
The exposure to public scrutiny of PFI contracts has been
welcomed by trade unions, but it could make it harder for
government agencies to find companies prepared to enter into
agreements with them.
A freedom of information expert said that though Dunion’s ruling
will not set a precedent outside Scotland, it could encourage other
people to seek similar information.
“The Scottish FOISA case opens the question as to whether a
contract between a public sector body and a private sector body can
remain confidential if there is public controversy surrounding the
contract and even if there is a 'confidential annex' to the
contract,” said Dr Chris Pounder of Pinsent Masons, the law firm
behind OUT-LAW.COM.
"The Scottish Information Commissioner's decision is in favour
of publication of the complete PFI contract. That might not be the
decision that could be arrived at under English FOI law. However,
one can see that this decision will encourage FOI requestors in the
UK to request any number of PFI contracts and possibly, in future,
Olympic construction contracts, nuclear power plant contracts and
IT procurement contracts.”
Pounder said that in controversial cases, the controversy itself
would be likely to make a case for release of contractual
information under FOI legislation. “This is especially if things
have gone very wrong as this helps the argument that the public
interest is served by complete disclosure of the contract", he
added.
In a separate development, the UK government has just launched a
consultation on the extension of FOI legislation to contractors or
companies which “carry out functions of a public nature”. This
makes it more likely that private IT contractors who deliver
outsourced services will eventually need to handle FOI requests,
according to Pounder.
