Scottish decision threatens PFI contract secrecy
NHS Lothian and Consort ordered to disclose deal details
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The Scottish Information Commissioner has ordered a health board to disclose the details of a private finance initiative (PFI) hospital deal worth ₤1.2bn. The decision could have far-reaching consequences, says a freedom of information law expert.
Commissioner Kevin Dunion said NHS Lothian could not refuse May Docherty's request for the contract to build and operate the Edinburgh Royal Infirmary on the grounds of commercial confidentiality. He ordered the release of the contract between NHS Lothian and Consort.
Consort has said it would consider the release of the contract an actionable breach of confidence, but Dunion said the idea that the entire contract was confidential could not be right.
"[NHS Lothian] sought to claim that a blanket exemption of confidentiality covered every one of the thousands of pages of this detailed contract," said Dunion. "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."
Dunion went further late last week when addressing a conference on FOI in Edinburgh. He said he wanted to make sure that companies involved in the increasing privatisation of public services were accountable to the public.
"When council housing is transferred to a housing association or when a charitable trust is established to run local authority leisure and recreation services, local people and employees may find that they have lost freedom of information rights at a stroke, as these bodies are not regarded as public authorities," he said.
The exposure to public scrutiny of PFI contracts has been welcomed by trade unions, but it could make it harder for government agencies to find companies prepared to enter into agreements with them.
A freedom of information expert said though Dunion's ruling will not set a precedent outside Scotland, it could encourage other people to seek similar information.
"The Scottish FOISA case opens the question as to whether a contract between a public sector body and a private sector body can remain confidential if there is public controversy surrounding the contract and even if there is a 'confidential annex' to the contract," said Dr Chris Pounder of Pinsent Masons, the law firm behind OUT-LAW.COM.
"The Scottish Information Commissioner's decision is in favour of publication of the complete PFI contract. That might not be the decision that could be arrived at under English FOI law. However, one can see that this decision will encourage FOI requestors in the UK to request any number of PFI contracts and possibly, in future, Olympic construction contracts, nuclear power plant contracts and IT procurement contracts."
Pounder said that in controversial cases, the controversy itself would be likely to make a case for release of contractual information under FOI legislation. "This is especially if things have gone very wrong as this helps the argument that the public interest is served by complete disclosure of the contract", he added.
In a separate development, the UK government has just launched a consultation on the extension of FOI legislation to contractors or companies which "carry out functions of a public nature".
This makes it more likely that private IT contractors who deliver outsourced services will eventually need to handle FOI requests, according to Pounder.
Copyright © 2007, OUT-LAW.com
OUT-LAW.COM is part of international law firm Pinsent Masons.
COMMENTS
Good
The sooner this huge con-trick, this deferred time-bomb of a massive debt for future generations is exposed the better. Then we'll REALLY see NuLabour's legacy.
"Commercial confidentiality" bullshit
Like AC1 points out, we the people, through our appointed agents/delegates the government, are party to these contracts. Yet they - our appointees - insist we can't be allowed to see the contracts they have signed on our behalf.
If you were an investor in a private company, and the CFO decided that all the contracts he'd signed with other firms were "commercially confidential" and you weren't allowed to see them, you wouldn't mess around: you'd seize the books and go through them with a fine-tooth comb to try and figure out what the bastard's embezzling, because you'd know the only possible reason would be because he's stealing.
I think the same applies here, and we've already got all the prima facie we need: pretty much every government minister in the past twenty years who has had pretty much anything to do with a PFI deal or privatisation has ended up working for the same people they've just signed the deal with or sold the public assets to, and almost always at a sinecure job paying them a vast fortune for a nominal day or two's work a week. And almost all of those deals and privatisations involve handing over massively inflated sums of public money or disposing of public assets at prices hugely below market rates. And the PFI firms always do a shit job and always ramp up their prices after the fact, and the government never complains, never sues them, never demands a refund, and is always keen to give them as many more contracts as they want, and it happens over and again.
How much more obvious does anyone need it to be?
@Anonymous Coward 1
Er, I think you've missed the point. This one was also refused on "Commercial confidentiality" grounds. What you are seeing here is a result of an appeal against that decision to the Information Commissioner.
You don't say whether you have raised an appeal centrally, but I'm guessing you haven't. If so, you cannot say that this wouldn't go the same way in your case. My gut feel is that you probably shouldn't hold your breath though. The English Commissioner's continuity of employment relies on not pissing off Gordon Brownstuff, the architect and biggest fanboi of PFI and its fraudulent effect on Government finances.
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