The landmark ruling could engender a sea change in the controls private contractors have over the release of information when working for the public sector.
NHS Lothian has refused to release details of the immense contract covering the building, maintenance and support services for the new Edinburgh Royal Infirmary, withholding the information on grounds of commercial confidentiality between itself and the contractor, Consort Healthcare.
Information Commissioner, Kevin Dunion, has made 10 separate approaches to the hospital on the matter and during the investigation it emerged the hospital had retained a 5000 page document from the public and the inquiry. Mr Dunion has also stated that the organisation failed to provide arguments for withholding any specific portions of the contract as confidential, and incorrectly claimed that the cost of providing the information would be excessive.
Within a month of the Freedom of Information act being implemented an information request had been made to the hospital about the billion-dollar contract. NHS Lothian has however stated that since the inception of the Freedom of Information Act in Scotland during January 2005, it has received 704 requests for information, only two of which have been sent to the commissioner.
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If the adjudication stands, public bodies will find it impossible to withhold information about their spending when dealing with private contractors, as the weight of claims for protection under confidentiality quickly diminish.
Kevin Dunion, who was appointed the first Scottish Information Commissioner in February 2003, said: "It is the responsibility of NHS Lothian to provide detailed justification for withholding the information requested. In this case it sought to claim that a blanket exemption of confidentiality covered every one of the thousands of pages of this detailed contract."
However, other than broadly indicating why Consort Healthcare did not wish the information disclosed, NHS Lothian provided me with virtually no arguments to justify withholding the contract. As a consequence I have ordered that the contract must be disclosed."
NHS Lothian have hit back at the Mr Dunion’s public calls for disclosure, John Matheson, Director of Finance, NHS Lothian, said: "We work in partnership with our private sector partners Consort, who operate the Royal Infirmary of Edinburgh, and it was felt by them to be inappropriate to release financial details for reasons of commercial confidentiality.
"We will of course be swiftly complying with this decision and releasing the details of this contract as soon as possible.
"We have been open in our dealings over this [contract], which we were able to renegotiate earlier this year, creating substantial benefits for patients and generating cash savings of £32m over its remaining lifespan. Details of this renegotiation were widely publicised and are available for anyone to see on our website."
According to NHS Lothian, the first request for information on the contract was received on the 24th of January 2005. A response, in accordance with legal advice, was then provided on the 21st of February 2005; however, the matter was then brought to the attention of the commissioner who has been investigating the matter since that date.
(DW)
