How to disclose confidential information the hard way
The making of a new public policy
A recent ruling has ended with a full public disclosure of the PFI Contract relating to the construction, maintenance and provision of support services for the Royal Infirmary of Edinburgh.
Under the Freedom of Information (Scotland) Act 2002, the Scottish Information Commissioner ruled that Lothian NHS Board must disclose all 8,022 A4 pages, 38 A3 pages and 1 drawing of which this Contract was said to comprise.
Indeed, the Commissioner commented that, not only did the Health Board have to release the full terms of the Contract, but, given that for more than half of the five month period of investigation, Lothian NHS Board only thought that the document amounted, in total, to 2400 pages (approximately a quarter of its actual length) they should “also consider conducting a review of [their] own records management procedures and practices with regard to such information, in order to ensure that all other relevant information can be identified at the earliest practical stage".
Given the public interest in PFI projects, the Commissioner has now set out a new Scottish Public Policy for dealing with such contracts which he would expect to be readily available for full disclosure under Freedom of Information legislation, with only minimal deletions of personal information relating to individuals.
How did it come to this?
Throughout this investigation the Board appears to have been, at best, indifferent to the requirements of the Freedom of Information Act, failing, in any way meaningfully, to engage with the process of disclosure and, at best, negligently obstructive to the Commissioner's Investigating Officer, preferring to hide behind the opinions and preferences of their PFI Contractor, Consort.
The Board, said the Commissioner, "repeatedly and consistently failed" to provide him with appropriate submissions to facilitate the investigation of this case. In his decision, the Commissioner makes it clear that it is for the Public Authority to make these submissions and not for any third party, including a PFI Contractor, no matter that, four months into the investigation, NHS Lothian and Consort eventually agreed that they “share the view that only the commercially sensitive information within the contract should be exempt from release”. But too late for the Commissioner.
As a final throw of the dice to prevent the disclosure of the contract, Lothian Health Board complained that the cost to it of providing the information would be greater than the £600 considered, by Statutory Instrument, to be excessive by Scottish Ministers. Their estimate of providing the information was actually £603.55 and needless to say the Commissioner, clearly believes that an excess of £3.55 over the limit set by Ministers is, to say the least, insignificant!
The Lessons to be Learned
-
The assumption must now be that the Freedom of Information Act means that every document in which Public Authorities are involved is potentially disclosable unless a specific exemption in the Act can be claimed, by the Authority, itself, with adequate supporting documentation and fully reasoned argument.
-
Unless overturned by the Court of Session, Scottish public policy is now that PFI/PPP contracts, generally, are among the documents which the Scottish Information Commissioner will expect to be fully disclosed by Public Authorities, subject only to the deletion of personal information about individuals.
-
If a Public Authority (or a Contractor through a Public Authority) wishes to specifically invoke the statutory "Commercial Interests and the Economy" exemption in the face of this general obligation to disclose PFI/PPP contracts, specific and well made out arguments will have to be made, by the Public Authority, at an early stage, as to the nature, content and commercial sensitivity of particular information contained in the contract. Simply to say that a whole PFI/PPP contract is subject to this exemption, will not be acceptable to the Commissioner.
-
In any event, all contractual documentation must be drafted in the knowledge that its content will, in all likelihood, become public. If the parties do not want to disclose particular commercially confidential information – then it ought not to appear in the documentation.
-
Arguing about the cost of disclosure, particularly in these days of electronic storage and transmission of information, is a non-starter. Indeed, disclosure of information under Freedom of Information legislation has to be seen as one of the costs of doing business with the Public Sector and should, even although it ought to be negligible in relation to the value of any PFI/PPP contract, be built into project budgets as necessary.
Freedom of Information is Here to Stay
As can be seen from the decision in this case, if you are a Public Authority faced with a request from anyone for information under the Freedom of Information Act, how that request is handled in its early stages will dictate both the amount and the effect of the disclosure which may have, eventually, to be made and thus the possibility of minimising both the disclosure and any adverse publicity which may result from a failure to properly disclose the information requested. Any such request therefore has an importance all of its own, no matter how trivial its subject matter may seem. It may not actually be a time bomb – but the clock is ticking from the moment it arrives.
FOR FURTHER INFORMATION PLEASE CONTACT: bill fowler