Freedom to ask the awkward questions

This is not a new or innovative concept. Various countries throughout the world, among them the United States, New Zealand, Canada and Ireland, have already introduced freedom of information legislation. Soon it will be our turn. Next New Years Day the Freedom of Information (Scotland) Act 2002, along with similar legislation for the rest of the UK, comes fully into force.

The act, promoted and enforced by Kevin Dunion in his role as Scottish information commissioner, creates a so-called statutory "right to know". Its basic tenet is that "a person who requests information from a Scottish public authority which holds it, is entitled to be given it by the authority".

So far, attention has focused on the extent to which enterprise boards, local authorities and other statutory bodies (police, fire service, etc) will be required to open themselves to public scrutiny.

But how relevant will the act be to the business community? From 1 January 2005, all public authorities will have a statutory duty to respond to any reasonable request for information. Anyone wanting to know about the wholesale cost of the canteen chips, or even the criteria used in granting a PPP contract worth hundreds of millions of pounds, must get an answer.

The scope of the act, however, goes far beyond photocopying invoices or policy guidelines. Take the hypothetical, but nevertheless realistic, example of a regional health authority inviting private sector tenders for a five-year contract to provide catering services. Under the act, any one of the unsuccessful tendering companies would have a right to request disclosure of information on how the board reached its decision.

We are talking detailed explanation here.

But there are backstops, designed to discourage the plain nosey, and to allow frank - and even illiberal - debate while sparing the blushes of our decision-makers.

For although "the balance will always lie in favour of disclosure", confidential information, as defined in the act, is protected. In addition, there is a qualified exemption for information relating to commercial interests and the economy.

Therefore, our hypothetical health authority may refuse to disclose such information, on the grounds that doing so would be prejudicial to its future ability to negotiate contracts with the private sector and that, in any event, the information is confidential.

Indeed, the public sector is likely to come under tremendous pressure from private partners not to disclose information under most circumstances.

And that could present the former with something of a dilemma. For example, a local authority may be happy to go public about a PPP schools contract to highlight to the voters what a good deal it managed to negotiate on their behalf. Conversely, the council’s private partners - the consortium that will build the schools and then provide facilities management services - may argue that details of the contract should not be disclosed.

And it could have legitimate reasons for doing so; from contractual confidentiality to a possibly debilitating effect on the value of its shares.

It therefore seems safe to presume that, in future, contracts between public authorities and private contractors or suppliers will place even greater emphasis on confidentiality issues than is the case at present.

Under the act, individuals or organisations whose requests for information are refused have the right of appeal to the information commissioner, who must issue a decision within four months of receipt of the appeal. If the commissioner subsequently finds in favour of the appellant, then the authority can be compelled to provide the information requested and if it does not, the matter may end up in the Court of Session.

However, of more immediate significance is the part of the act that requires a response to a request for information within 20 working days.

As the government will be keen to ensure that there are not any hiccups when the act comes into force, all public authorities will need to ensure that their records management systems are operating at a high rate of efficiency.

And that might require serious updating of information systems in council chambers and regional health authorities from Wick to Gretna Green. So, whether or not this legislation proves to be any good for the rest of business, the Freedom of Information (Scotland) Act 2002 is already being welcomed by the data management and IT software industries!

David Goodbrand is an associate with the commercial law firm, Burness.