Pointing which way?

“Landmark FOI victory for campaigners” cried one headline, echoing a number of editorials. This followed the recent decision by the Scottish Information Commissioner, Kevin Dunion, requiring Lothian NHS Board (“Lothian”) to disclose its £1.2bn PFI contract for the new Royal Infirmary of Edinburgh (“RIE”), following a request under the Freedom of Information (Scotland) Act 2002.

Indeed, it appears that the decision prompted Alex Neil, SNP MSP for Central Scotland, to write to NHS Lanarkshire seeking the immediate release of their PFI contracts for Stonehouse and Hairmyres Hospitals. Calling for other health authorities to release their PFI contracts, Mr Neil commented “This will open the floodgates and allow us to see what these contracts are really doing.”

A question of onus

If only it were that simple. While libertarians are exulting in the apparent victory for democracy, commentators have generally missed, or at least misunderstood, the fact that the Commissioner’s decision resulted from the technical failings of the public authority in dealing with the request, rather than considered deliberation on the Commissioner’s part.

Under the Act, the presumption is for disclosure of the requested information. It is for the public authority from which the information has been requested to establish that any of the exemptions available within the Act apply, permitting the authority to withhold that information. The onus on public authorities is a heavy one, and since the Act came into force in January 2005, the Commissioner has sought to reinforce that an exemption applies only to those parts of the requested information to which that exemption relates. The Act does not permit the application of blanket exemptions across the whole of the requested information without justification.

Progress of the RIE case

In January 2005, Ms May Docherty requested a copy of the PFI contract relating to the RIE from Lothian. Lothian responded advising that it considered the information to be exempt under s 36(2) of the Act. This requires the public authority to establish, first, that the information was obtained by it from another party, and secondly, that its disclosure of the information would amount to an actionable breach of confidence. Ms Docherty ultimately appealed to the Commissioner.

In terms of the appeal procedure, the Commissioner requested a copy of the contract that had been the subject of the request, together with details of Lothian’s reasoning behind its decision that s 36(2) applied to the whole contract.

Lothian responded by supplying the contract (although during the two year investigation, it subsequently found over 5,000 additional pages of which it had not been aware), together with documentation from the PFI supplier, Consort Healthcare Ltd, which simply stated the supplier’s view that release of the contract would amount to an actionable breach of confidence.

The Commissioner subsequently separated the contract into 127 component parts and requested detailed reasoning as to what individual exemptions Lothian NHS Board believed applied in relation to each component, and further, its justification for the application of each exemption to each of the component parts.

Despite repeated requests and indeed reminders to the authority of its obligations under the Act, Lothian failed to provide the information requested, simply reiterating the supplier’s opinion that the information was wholly exempt.

In the absence of any real submission from Lothian, the Commissioner accordingly had no alternative but to comply with the statutory presumption for the release of the information.

Was the outcome avoidable?

Following the Commissioner’s decision in the appeal against VisitScotland, that the s 36(2) “confidentiality” exemption does not apply to negotiated elements of a contract (on the basis that such information is not “supplied” by a third party), clearly the application of this exemption will be very limited in the context of most contracts.

A more obvious exemption upon which Lothian should have based its submission lies in s 33(1), the so-called “commercial interests” exemption, on which many public authorities have successfully relied in relation to commercially sensitive information such as contract pricing. Had Lothian advanced a submission under this section, the Commissioner would at least have had to consider whether some of the more commercially sensitive information should be withheld from disclosure.

What the decision does reinforce is that:

(i)    public authorities are ultimately solely responsible for determining the extent to which exemptions apply, albeit that it is advisable to consult with third parties from whom the information may have been obtained;

(ii)     blanket exemptions will rarely apply, and authorities effectively require to consider the extent to which any exemption applies, and redact only the affected information;

(iii)    public authorities should consider all the available exemptions;

(iv)    in the absence of any real submission by a public authority, the Commissioner will not make an independent assessment as to possible applicable exemptions; and

(v)    to have a fighting chance, public authorities should at least co-operate with the Commissioner’s investigations.

Contrary to popular belief, what the decision does not represent is a change in tide.

Louise Singleton is an associate with Biggart Baillie