Professor Sheila Bird submitted a Freedom of Information request to the Scottish Prison Service, seeking to obtain monthly statistics relating to the performance record of Reliance Secure Task Management Limited, who are contracted by the Scottish Ministers to provide prisoner escort and court custody services. SPS refused the request, on the basis of the exemptions in s. 33(1)(b)—prejudice to commercial interests—s. 36(2)—actionable breach of confidence—and s. 30(c)—substantial prejudice to the effective conduct of public affairs.
It was accepted that SPS held the information requested: copies of the monthly report supplied by Reliance to SPS, which showed the results of monitoring done by Reliance against performance indicators set out in their contract, contained all the information sought by Professor Bird.
However, it was argued by SPS on behalf of Reliance that to release the monthly reports would be substantially to prejudice Reliance's commercial interests. Apparently similar information had been released in the past, and had led to negative publicity, which in turn had adversely affected Reliance's share price and ability to recruit staff in Scotland. It was contended that complying with Professor Bird's request could have similar effects.
Regarding the confidentiality argument, reference was made to the terms of the contract between SPS and Reliance. The contract set out which terms and figures might be published on the SPS website, and provided that no other information would be released by either party without the consent of the other. SPS had contacted Reliance upon receipt of Professor Bird's request to ask for permission to release the information, and this permission had been denied. It was therefore argued that release of the information would amount to an actionable breach of confidence by SPS.
The Scottish Information Commissioner gave short shrift to the commercial interests argument, stating that no evidence had been put forward to support the claim that Reliance had suffered the damage alleged as a cause of previously released information, nor the claim that similar damage would arise this time around. He did however look at the public interest test, despite the fact that he had found that the commercial interests exemption did not apply, meaning that the public interest test was not a relevant consideration.
According to the Commissioner, the contract and its performance were legitimate subjects of public interest. Contracting out should not result in diminished public scrutiny—a private company that performs public services should be scrutinised to at least the level as that to which public servants are subjected when carrying out their duties, if not higher. Further, any adverse reaction to Reliance would likely arise from unacceptable performance, and the public has an interest in ensuring that any inadequate performance is addressed. He was therefore not convinced that the public interest in withholding the information would outweigh that in disclosure.
Nonetheless, it was the confidentiality exemption that determined the outcome of this case. The Scottish Information Commissioner looked at the three criteria for confidentiality to apply: the information must have the necessary quality of confidence, and must not be otherwise available to the public; it must be obtained in circumstances which denote an obligation to keep it confidential; and disclosure must result in detriment to the party who confided the information to the public authority. In this case the latter two criteria were clearly met: the second by the terms of the contract between SPS and Reliance, and the third by the fact that there was at least a reasonable likelihood of detriment to Reliance as a result of disclosure.
As for the first test, the Commissioner was satisfied that the information requested, since it was not available to the public in any other way and was subject to the provisions set out in the contract, could be classed as confidential. However, this was subject to one exception: details of any death or suicide of any prisoner under Reliance's control. Any death in public custody would be known to the media within hours, and would be subject to public and judicial scrutiny. Such information could not therefore conceivably be outwith the public domain, and therefore could not be confidential.
The confidentiality exemption in s. 36(2) is not one to which the public interest test applies. However, it can be a defence to an action for breach of confidence if public interest in the disclosure outweighs public interest in maintaining confidence, and the Commissioner accordingly considered this point. He found that for an overwhelming public interest in disclosure to exist, such as would outweigh the interest in confidence, there would have to be a clearer link between the release of the information and the alleviation of any perceived risk to the public.
The details of any death or suicides were therefore ordered to be released to Professor Bird; the remainder of the information requested was exempt from disclosure as confidential.