As you may have seen in the press, Kevin Dunion, the Scottish Information Commissioner, last week ordered the Scottish tourism governing body, VisitScotland, to disclose copies of a number of contracts that it has entered into with VisitScotland.com website operator, eTourism Ltd.
The decision, which accords with an earlier decision of the Information Tribunal (Derry City Council v Information Commissioner) under the corresponding provisions of the Freedom of Information Act 2000, has wide-ranging implications for public authorities and anyone contracting with them.
The VisitScotland.com website is run by eTourism, a joint venture company in which VisitScotland has an interest, along with a number of private sector companies. The commercial arrangements between VisitScotland and eTourism are underpinned by a number of contracts relating to the VisitScotland.com website.
An application was made under the Freedom of Information (Scotland) Act 2002 ("FOISA") by the chairman of a local association of accommodation providers to see these contracts in order that the association could assess whether the terms of the contracts affected VisitScotland's ability to give impartial advice and guidance to its participating members. VisitScotland contended that the contracts concerned were exempt from disclosure as they contained confidentiality obligations which provided that their contents were confidential and could not be disclosed without eTourism's consent (which eTourism was refusing to give).
Section 36(2) of FOISA states that information is exempt from disclosure where "(a) it was obtained by a Scottish authority from another person (including another such authority); and (b) its disclosure by the authority so obtaining it to the public… would constitute a breach of confidence".
From VisitScotland's perspective, however, there was a problem. As the contracts concerned had been drafted by VisitScotland's solicitors (as part of an OJEU tender) and then adjusted through negotiation with the other contracting parties, VisitScotland was unable to show that the information contained within the contracts had been "obtained" by it from these parties or, indeed, anyone else. The requirements of paragraph (a), therefore, had not been satisfied and the Commissioner ruled that the contracts could not be shielded from disclosure under section 36(2).
Clearly, this issue will arise in many contracts concluded with public authorities as the process described in this case for the creation and negotiation of contracts is extremely common. This is likely to mean that it will be very difficult in most cases to argue that contracts themselves can be shielded from FoI disclosure using the confidentiality provisions within them. Indeed, from the public authority's perspective, such provisions may be positively dangerous since they may effectively set up confidentiality obligations that the authority may not be able to honour.
It follows, therefore, that the confidentiality provisions of public sector contracts need to be drafted very carefully. If confidential information contained within a contract has genuinely been provided to a public authority by a third party, this fact needs to be carefully recorded, both in the contract itself and evidentially (for the benefit of submissions to the Commissioner).
Grant Campbell (0131 656 0115; grant.campbell@brodies.co.uk) and Christine O’Neill (0131 656 0286; christine.oneill@brodies.co.uk) are partners in Brodies LLP, Edinburgh
Current Submissions04.07.08 Getting a Get in Scotland - 2This follow-up to the article published in March 2006 explains how current Scots divorce law affects Jewish clients and how solicitors can give appropriate advice 12.06.08 No place for secrecyFuller version of the Opinion article, Journal, June 2008: critique of the system for appointment as Queen’s Counsel in Scotland 11.03.08 One Scotland, many cultures?Despite the protections of the Human Rights Act, the position of travelling people in Scotland appears to have worsened in recent years - why? 26.02.08 Bank charges and the Unfair Terms RegulationsThe significance of the Unfair Terms in Consumer Contracts Regulations in the context of the current litigation over bank charges 21.02.08 CGT: Don't lose out on 6 April 2008Couples should consider asset transfers before then to preserve indexation relief 14.12.07 Common sense prevailsThe options open, and the issues that arise, now that the proposed planning gain supplement is not to be introduced 07.12.07 Discounting justiceAuthor contends that sentencing discounts and other developments have created an imbalance in the justice system 10.10.07 Advocacy in mediationAn overview of the mediation process and the opportunities for solicitors and clients 06.09.07 TUPE: stay your handA Court of Session ruling on a law firm redundancy marks a fundamental change in TUPE 24.07.07 EAT breaks ground with TUPE insolvency rulingRuling on when insolvency proceedings begin leaves successor employer liable 06.07.07 Confidentiality clauses - beware!The Information Commissioner's decision in the VisitScotland case requires very careful drafting of confidentiality provisions in public sector contracts if they are to work 06.07.07 The power of marks: Frankie goes after Hollys nameHow failure to address issues of ownership of the band's name stored up trouble for Frankie Goes to Hollywood 14.05.07 Court plans with little appealThe fuller version of the Opinion article in the Journal for May 2007 14.05.07 Winning waysThe fuller version of the article in the Journal for May 2007 08.02.07 Routes to qualification: the Italian pictureAn Italian lawyer with an interest in training in different jurisdictions reports on current developments in the Italian legal system 09.01.07 Contractual handcuffs: enhanced redundancy rightsThe Court of Appeal decision in Keeley v FOSROC International Ltd requires employers to exercise caution when referring to redundancy rights in staff handbooks 27.12.06 The Isle of ManAn summary of the current legal and tax regime for individuals and companies based on the island (a longer version of the briefing in the November 2006 issue) 15.11.06 Costume Wars: copyright storm over the troopersA row over "Star Wars" costumes illustrates the need to protect all intellectual property rights in written agreements 13.10.06 Survival of the fittest? A replyReply to article on selection for Diploma and traineeship places by Michael Torrance in the September 2006 Journal 13.10.06 TUPE passes the buckFar from providing clarity, the new regulations will need litigation to decide the effect of the insolvency provisions (longer version of October 2006 briefing article) 17.08.06 For supplement read tax - an updateAuthors update their previous Journal article on the proposed planning gain supplement 17.08.06 Technology and the Scottish courtsAn update on the use of technology in the Scottish courts, based on the author's experience of a recent patent case 26.07.06 A lack of trustForthcoming in August issue, put online because of its urgency, the article outlines the final form of the trust tax changes in this year's Finance Act 17.07.06 Ireland 4, Italy 0The ECJ decision in the Irish-Italian dispute in the Parmalat companies liquidation proceedings provides important guidance on jurisdiction 05.04.06 Legal science or law-lite? A responseThis reply to Professor Gretton argues that changes in Scots law teaching are a necessary response to changes in universities, the wider community and the law itself 03.04.06 Opening a binding global route for personal dataIn a significant move the Information Commissioner has allowed a company to transfer employees' personal data outwith the EU under binding internal rules 02.04.06 Mentally disordered offendersOverview of the options available to the courts when dealing with offenders who have or may have a mental disorder, following recent legislative reforms 30.03.06 Bias and mental health tribunals: a replyReply to criticisms of the new tribunals, arguing that the composition of the tribunals is not inherently unfair and only research can assess their performance 17.01.06 Legal aid in children's hearing referralsThis paper delivered at the legal aid conference, argues that the interests of justice require better remuneration for solicitors appearing in children's hearing cases 09.12.05 Holes in Scotland's corporate killing proposalsGaps in the expert working group's proposals could make them unworkable and bad for business 10.08.05 Prosecuting bigotry offencesTwo appeal decisions have exposed limitations in the statutory offences directed at racial abuse 08.07.05 Commissioner: Public Authorities must do moreInformation Commissioner's first appeal decision highlights areas for improvement 14.04.05 New identity for criminal justice bodyScottish Association for the Study of Offending launches by removing "Delinquency" from title 14.04.05 Information and Consultation RegulationsBriefing on the regulations in force from 6 April 2005, covering businesses with more than the prescribed number of employees 13.04.05 Retailers seek effective court action on crimeScottish Retail Consortium proposes more effective intervention following 3rd Retail Crime Survey 11.04.05 Appropriate dispute resolutionThis paper, given to the Four Jurisdictions Conference in Nice this year, discusses how family law can make a difference for the better by careful choice of the most suitable method of resolution 09.03.05 ASBOs and young peopleWhat to look for when acting for a young person facing an antisocial behaviour order application 21.02.05 Sell or transfer?Longer version of briefing published in February 2005 issue, page 44 08.02.05 Promoting competitiveness or competition?Discussion of EU rules on state aids with particular reference to Highlands and Islands ferries 10.11.04 Guarding the inner sanctumHow to minimise the risk of breaches of internet security 10.11.04 The Clinical Trials Directive - a summaryWhat the EU Clinical Trials Directive means for trials of medicinal products 13.10.04 Sheriff Court Rules Council consultation paperConsultation on proposals for further extension of the use of information technology in civil cases in the sheriff court (response date: 15 November 2004) 13.10.04 Ignorantia juris: it's all Greek to meSecond annual APEX lecture given by the President of the Law Society of Scotland, on the rule of law and its essential components 13.10.04 Virtual firms: transactional learning on the webHow today's Diploma students are introduced to legal transactions in a virtual environment 13.10.04 Drafting consumer contractsGuidance on drafting consumer contracts and ensuring compliance with the Unfair Terms in Consumer Contracts Regulations 1999 |