Member Article

Proposals to extend the scope of freedom of information in Scotland will, if accepted, expand an existing risk to the commercial confidentiality of companies bidding for public sector contracts.

The announcement that the Scottish Government will shortly be consulting on the possible expansion of the ambit of the Freedom of Information (Scotland) Act 2002 (FOISA) is a reminder that FOISA can have an impact on the private sector as well as the Scottish public authorities at which it is principally aimed.

For more than five years, FOISA has sought to promote openness and accountability among Scottish public authorities by providing a general statutory right of access to members of the public to all types of recorded information held by Scottish public authorities.

FOISA currently applies to around 10,000 Scottish public authorities.  Under FOISA however, Ministers can make an order to extend the scope of the Act to include bodies that carry out functions of a public nature and/or contractors who, under a contract with a Scottish public authority, provide a service that is a function of that public authority.
 
Bruce Crawford, the Minister for Parliamentary Business has confirmed that the Scottish Government is to consult on whether or not the scope of FOISA should be extended to cover bodies which, although not in the public sector, provide public services such as  private prisons and local authority leisure and recreation trusts.

While considering this potential extension of FOISA it is worth noting that private sector entities may already be affected under the present regime if they work with, or have expressed an interest in working, with a Scottish public authority.

For example, over the last five years, unsuccessful bidders in tender processes have frequently exercised the rights enshrined in FOISA to obtain information about the successful bidder's tender submission.

The Scottish Information Commissioner's Office advises Scottish public authorities that, on receipt of such a request, the authority should consult with the third party concerned as to whether any of the requested information should not be disclosed and allow for representations to be made.  In practice the time frame for this is very tight (generally five working days at most) because of the 20 working day deadline for an authority to issue a response to an information request under FOISA.

There is a temptation for private organisations to apply a broad-brush approach in identifying information that they wish to withhold.  This approach will not find favour with Scottish public authorities or with the Scottish Information Commissioner should a subsequent appeal take place.

It is important when consulted by a Scottish public authority about a request for information that concerns your business:
· to carefully assess the request and prepare an appropriate response
· to provide well reasoned and considered arguments as to why certain information should be withheld on the basis of an exemption available under FOISA
· where an exemption you cite is subject to the public interest test, to demonstrate that you have considered this test and present a reasonable argument as to why the public interest in withholding the information outweighs the public interest in disclosing it.

Ultimately the decision as to whether or not information will be disclosed rests with the public authority.  Although there are no guarantees, the more robust you can make your representations, the greater your chances are of successfully persuading the authority to withhold information.