The
decision could be a landmark in extending freedom of information
(FOI) legislation into the private sector. Scottish Commissioner
Kevin Dunion told technology law podcast OUT-LAW Radio this week
that he believes the public has a right to probe private
contracts.
"The FOI Act should follow the money and if the money is being
spent on public functions whether it is directly from the public
authority or a private contractor then information about that
should be made available to people," he said.
Dunion recently ordered NHS Lothian to publish the contract
between it and PFI operator Consort for the £1.2 billion building
and 30-year operation of the Edinburgh Royal Infirmary.
OUT-LAW has learned that NHS Lothian will not appeal the
decision, and that Consort has agreed not to sue the authority.
The health authority said that it had refrained from releasing
the contract because it was threatened with legal action by Consort
for breach of confidentiality.
"NHS Lothian was willing to release information in February 2005
but was prevented following legal advice from Central Legal Office,
which reflected the position taken by Consort our PFI partners in
respect of commercial confidentiality," said a statement from NHS
Lothian.
"We work in partnership with our private sector partners
Consort, who operate the Royal Infirmary of Edinburgh, and it was
felt by them to be inappropriate to release financial details
for reasons of commercial confidentiality," said John Matheson,
director of finance for NHS Lothian.
Dunion told OUT-LAW Radio, though, that local authorities must
be responsible for their information and must not put the interests
of private developers above those of the public's right to
know.
"The code of practice makes it quite clear that public
authorities should not enter into confidentiality agreements on
such contracts or indeed on any contracts," he said. "It's up to
the authority to set out its arguments and its conclusions to me
under the legislation."
"The code of practice which we have in Scotland and which exists
elsewhere in the UK suggests that companies and authorities that
are drawing up contracts should assume that information should be
proactively put into the public domain," he said. "When you receive
an FOI request for goodness sake [don't] assume that simply
asserting asserting commercial confidentiality is going to get you
anywhere. It clearly will not."
FOI legislation only applies to public authorities, but Dunion's
ruling that the public authority's contract with a private PFI firm
must be published extends it a little way into the private
sector.
The Ministry of Justice in Westminster, though, has just
launched a consultation on the formal extension of FOI law into the
private sector to take account of the fact that public sector
functions are increasingly carried out by private sector
companies.
The [FOI] Act includes provision to extend its coverage to
organisations that carry out functions of a public nature and to
contractors who provide services which are a function of that
public authority," said the consultation paper. "The aim of the
consultation document is to seek views as to whether the Government
should…extend the coverage of freedom of information (FOI) and if
so which organisations it should consider."
