The Scottish Information Commissioner (SIC) recently consideredthe
subject of confidentiality and FOIand, in particular, whether the
release of the information requested by the Scottish Executive would
constitute a breach of confidence actionable by the party that had
originally provided it.

Ms Cartlidge asked the Scottish Executive for a breakdown of the
cost of a digital television pilot involving the Scottish Executive,
West Lothian Council, Dumfries and Galloway Council, Young Scot, NHS
Health Scotland and StartHere. She also asked for the names of any
private sector companies involved in the project and for information
about the costs of the contract.

The Scottish Executive released the name of the company involved in
the project, Thunderchief Pictures Limited ("Thunderchief") and some
details of the breakdown of the costs of the contract. It did not
release details of some costs on the basis that it did not hold the
information. Neither did it release some costs, arguing that the
information was subject to a confidentiality clause in the contract
between it and Thunderchief, therefore, exempt from release under
section 36(2) of FOISA.

The SIC held, in relation to section 36(2):

(1) The information in question in this case had been received from
another party - he accepted that the information was received by the
Executive from Thunderchief as part of the tendering process for the
services needed by the partner organisations to carry out the project.

(2) The information had the necessary quality of confidence and had
been received in circumstances that imposed an obligation of
confidentiality - the agreement between Thunderchief and the Executive
(the "contract") contained a clause that prohibited the disclosure of
"confidential information" to any person. The definition of
"confidential information" in the contract was wide and included
information relating to costs of operation, production costs, sales
prices and purchase costs. However, the SIC was satisfied that the
information in question has the necessary quality of confidence and was
received in circumstances that imposed an obligation of confidentiality
on the Executive.

(3) The breach of confidence must be actionable, that is a party
bringing the action (in this case Thunderchief) would have to prove not
only that there would be an unauthorised disclosure of information, but
also that disclosure of the information would cause damage. The SIC was
provided with information in which Thunderchief claimed that release of
the information in question would considerably damage its commercial
interests, as it would enable competitors to undercut its bids in any
future tendering process it might take part in. The SIC accepted that
this was the case but stated that information contained in concluded or
terminated contracts decreases in sensitivity with the passage of time.
Here, the time elapsed was not sufficient to degrade the commercial
sensitivity of the information to the extent that no damage would be
done to Thunderchief’s interests. Therefore the exemption in section
36(2) could be relied on.

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