Commissioner orders release of contract information

 News Release: 21st 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 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.


For further information contact Sue Gemmell or Paul Mutch on 01334 464610, out of hours, 07976 511752

Notes to Editors:

  • and its online booking service are operated as a public private partnership by eTourism Ltd, a joint venture company established in 2002. eTourism's shareholders include TourCo Ltd, a company set up by VisitScotland and participating Area Tourist Boards.
  • In 2002 eTourism entered into contracts and agreements with VisitScotland and the Area Tourist Boards in relation to the operation of the website and booking service.
  • Mr Keith, Chairman of the Association of Dumfries and Galloway Accommodation Providers, submitted that information about details of the agreements between eTourism and VisitScotland should be released to allow businesses to assess the impartiality of VisitScotland's dealings with providers, advice and recommendations. He was also concerned about VisitScotland's provision of advertising for eTourism and whether this was paid for or included in the agreements.
  • During the course of the investigation VisitScotland, having sought the consent of eTourism, released some further information to Mr Keith. The Commissioner's decision relates only to the remaining information which was withheld.
  • VisitScotland cited the Section 36(2) exemption in the Freedom of Information (Scotland) Act 2002 in its refusal to release the information. Under this section information is exempt information if it was obtained by a Scottish public authority from another person and its disclosure by the authority so obtaining it would constitute a breach of confidence by that person or any other person.
  • The Information Tribunal decision on Appeal Number EA/2006/0014 Derry City Council and the Information Commissioner is available at
  • The full decision will be available from noon on 21 June 2007 on this website: Decision 088/2007

The Freedom of Information (Scotland) Act 2002

  • The Freedom of Information (Scotland) Act 2002 (FOISA) provides a statutory right of access to all information held by Scottish public authorities. This right came into effect on 1 January 2005.
  • Around 10,000 public authorities in Scotland are covered by FOISA. They include the Scottish Parliament and Executive, police forces, the NHS, local authorities, education institutions, and publicly owned companies.
  • Information can only be withheld by a public authority if it falls under one of the exemptions listed in FOISA. If an individual believes an authority is wrong to withhold information, they ultimately have a right of appeal to the Scottish Information Commissioner, who can require release.
  • The parties to any case have the right to appeal against the Commissioner's decision to the Court of Session on a point of law only.

The Scottish Information Commissioner

Kevin Dunion the Scottish Information Commissioner is a fully independent public official, appointed by the Queen on the nomination of the Scottish Parliament.

His duties and powers are to ensure that people get the information from Scottish public authorities to which they are entitled.

His role actively promotes and enforces compliance with FOISA.


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