Case Study
Freedom of Information
Tuesday 24th June 2008
Two key developments have arisen in connection with the Freedom of Information legislation which will be of interest to Registered Social Landlords (RSLs). Although not subject to the Freedom of Information legislation, it is recognised that RSLs follow the legislation as a measure of good practice. Therefore this article highlights the recent developments and comments on the possible effect on RSLs.
The Commissioner's Decision
In 2005 under the Freedom of Information legislation May Docherty requested the release of the £1.2 billion contract between NHS Lothian and Consort Healthcare to build and operate Edinburgh Royal Infirmary. NHS Lothian refused to release the contract on the grounds of commercial confidentiality. Consort indicated that its release would give them grounds to sue NHS Lothian for breach of confidentiality. May appealed to The Scottish Information Commissioner. He threw out the argument of NHS Lothian that a blanket exemption of confidentiality permitted them to withhold the contract. He found that as the contract extended to thousands of pages, it was not possible for every single page to be confidential. He ordered the release of the entire contract.
This decision is of interest to RSLs who have attempted to protect their contracts with public authorities on the grounds of confidentiality. Since the FOI legislation came into force, some contracts include a clause stating that the entire contract is confidential, as this is a permitted exemption from the disclosure requirements. If the Commissioner has no hesitation in ordering the release of a politically sensitive £1.2billion hospital contract, then claiming a blanket confidentiality exemption for lesser contracts, such as Supporting People contracts or Care Home contracts, is clearly going to fail. The message is simple - an entire document is unlikely to be accepted as confidential - therefore care must be taken to specify in the contract the particular sections which are considered confidential on the basis of justifiable grounds. Even then, it remains to be seen whether this will successfully resist a disclosure request.
UK Government Consultation
In a further development in this area, the UK Government has recently initiated a Consultation on the extension of the Freedom of Information Act 2000. Although Scotland has its own Freedom of Information Act it is possible that any changes effected in England may be mirrored in Scotland in due course.
The consultation proposes that the Freedom of Information Act is extended to cover not only public bodies but also private organisations which carry out functions of a public nature. The consultation asks whether the government should use their powers to extend coverage under section 5 of the Act, and if so which organisations should it cover.
Currently, RSLs and other private organisations are not subject to the Freedom of Information legislation as they are not considered to be public bodies. However, many have taken over public services, whether through a stock transfer of a local authority's housing, or running care homes for local authority funded residents. Currently only contracts entered into with a public authority are at risk from FOI disclosure requests - it may only be a matter of time before all contracts of an RSL may be at risk of public disclosure on request.
Prior to the closing date of 1st February 2008 comments and views are encouraged from all sectors. Following this the UK government will consider the responses and issue its findings.
If you would like further information please contact:
Alison Thompson 0141 221 5562 amt@tcyoung.co.uk