Scottish Commissioner orders release of contract information

News Release 21 June 2007:

The Scottish Information Commissioner, Kevin Dunion, has today issued a decision requiring VisitScotland to release copies of contracts it holds with eTourism Ltd (the joint venture company which operates its web portal and booking service visitscotland.com) to Mr Alan Keith, Chairman of the Association of Dumfries and Galloway Accommodation Providers. The contracts detail the financial and operational arrangements for the website.

VisitScotland had originally refused to disclose all but 5 of the contracts, claiming the information was exempt under Section 36(2) of the Freedom of Information (Scotland) Act 2002. This section allows that information provided to a public authority by a third party is exempt from release, where disclosure would constitute an actionable breach of confidence. Both conditions must be satisfied in order to claim this exemption.

However, after investigation, the Commissioner decided that information in the contract did not constitute information provided by a third party to VisitScotland. He therefore ruled that the exemption in S36(2) does not apply in this case.

Kevin Dunion, the Scottish Information Commissioner said:
“This is an important decision which has implications for authorities beyond this particular case. I have taken the view that when contracts are the outcome of negotiations between parties, it cannot normally be said that the concluded contract is information which has been obtained from another person. As a result withholding the contract under the confidentiality exemption in the Freedom of Information (Scotland) Act is not justified.”

The Commissioner's decision is in line with a similar case heard by the Information Tribunal, which deals with appeals under the UK freedom of information laws. The Tribunal decided that the process of negotiation of a contract between Derry City Airport and Ryanair involved an exchange between the parties, but that information in the concluded contract cannot be considered to fall within the scope of third party information within the confidentiality exemption.

The Commissioner has ordered VisitScotland to provide Mr Keith with all the information he had requested within 45 days.

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