Scottish Prison Service can withhold Reliance contract details.

Graphic version of the wordPRESS RELEASE - Issued 24th November, 2004

Scottish Prison Service can withhold Reliance contract details

The Scottish Information Commissioner [1] today announced the outcome of his investigation into the complaint by Nicola Sturgeon MSP over the decision by the Scottish Prison Service not to publish its contract with Reliance, for prisoner escort services, in full.

He has determined that the presence of a confidentiality clause in the contract between the Scottish Prison Service (SPS) and Reliance Secure Task Management Ltd (Reliance) meant that the SPS did not breach the Code of Practice on Access to Scottish Executive Information [2] (the Code) when it withheld details from the contract published on 20 May 2004.

However, the Commissioner expressed his dissatisfaction with this type of confidentiality agreement, which required that any information in the contract be withheld solely at the request of Reliance. In a commentary on the case, he noted that this kind of clause would not comply with the good practice guidelines regarding confidentiality agreements to be followed by public authorities once the Freedom of Information (Scotland) Act 2002 [3] (the Act) comes into force on 1 January 2005.

The Commissioner, Kevin Dunion concluded:

?In my view, the SPS did not make a compelling case that applying the exemptions of the Code of Practice alone justified the withholding of the information. Nor, even if the exemptions did apply, have they demonstrated to me that the public interest lay in withholding rather than releasing the information. However, as the information requested is subject to a contractual confidentiality agreement between SPS and Reliance and given that the Code of Practice does not set aside statutory or other legal restrictions on disclosure, the SPS is entitled to withhold the information?

The full text of the Commissioner?s decision can be viewed on this website.


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Notes to Editors:

Background to the Case:

  • Nicola Sturgeon MSP initially asked Cathy Jamieson, the Justice Minister, to release the contract between the SPS and Reliance on 21 April 2004.
  • An edited version was published on the SPS website on 20 May and the following day Ms Sturgeon asked the Justice Minister to review the decision to withhold certain information, in line with the Code.
  • On 7 June, SPS wrote to Ms Sturgeon confirming that it had reviewed its decision under the terms of the Code and concluded that its decision to withhold parts of the contract was justified, claiming the use of exemptions in the Code.
  • Ms Sturgeon wrote to the Commissioner on 30 June, asking him to investigate the case under the terms of the Code. On 2 July, the Commissioner confirmed that he would investigate the case.

1. The Scottish Information Commissioner:

  • Kevin Dunion is the Scottish Information Commissioner, a fully independent public official, appointed by the Queen on the nomination of the Scottish Parliament.
  • His role actively promotes and enforces compliance with the Freedom of Information (Scotland) Act when it comes into force in January 2005.
  • Until then he is responsible for hearing complaints under the voluntary Code of Practice on Access to Scottish Executive Information

2. The Code of Practice on Access to Scottish Executive Information (the Code):

This voluntary Code sets out guidelines for the Scottish Executive and its agencies for making the information they hold available to the public. It has been in place since the Executive was created in 1999 but no complaint has been made under it prior to responsibility being passed to the Commissioner in October 2003. Under the Code, the Commissioner has the power to consider disputed cases and issue recommendations about whether information should be released. He has no authority to force the release of information under the Code, however.

3. The Freedom of Information (Scotland) Act 2002:

In January 2005, the Code will be superseded by the Freedom of Information (Scotland) Act 2002, which will grant for the first time a legal right to access information held by Scottish public authorities. From then, the Commissioner will be able to consider disputed cases and, where necessary, oblige public authorities to release information.

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