Scottish Information Commissioner orders release of NHS Lothian PFI contract

News release: 24th October 2007

The Scottish Information Commissioner has told NHS Lothian that it must disclose full details of its contract with Consort Healthcare covering the provision of building, maintenance and support services for the new Royal Infirmary of Edinburgh.The Commissioner, Kevin Dunion, rejected the claim by NHS Lothian that the whole PFI contract was confidential, and in his decision highlighted shortcomings in the way in which NHS Lothian responded to the initial freedom of information request and his subsequent investigation.

The Commissioner found that NHS Lothian had:

  • only belatedly established the full extent of the contract documentation - with over 5,000 additional pages being discovered well into the investigation;
  • failed to provide justification for withholding all of this information as confidential;
  • failed to provide arguments for withholding any specific portions of the contract as confidential;
  • incorrectly claimed that the cost of providing the information would be excessive.

Kevin Dunion, Scottish Information Commissioner said:

"It is the responsibility of NHS Lothian to provide detailed justification for withholding the information requested. In this case it sought to claim that a blanket exemption of confidentiality covered every one of the thousands of pages of this detailed contract. However, other than broadly indicating why Consort Healthcare did not wish the information disclosed, NHS Lothian provided me with virtually no arguments to justify withholding the contract. As a consequence I have ordered that the contract must be disclosed."


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

Notes to Editors:

Decision 190/2007 Ms May Docherty and Lothian NHS Board

In January 2005 Ms Docherty asked NHS Lothian for a copy of the PFI contract signed between the Royal Infirmary of Edinburgh NHS Trust and Consort Healthcare Limited for building, maintenance and support services

NHS Lothian refused to disclose the information, upholding their decision on review, citing section 36(2) (confidentiality) exemption in FOISA. Ms Docherty remained dissatisfied and, in May 2005, applied to the Commissioner for a decision.

In response to notification of the appeal, NHS Lothian provided the Commissioner the contract and associated schedules. It did not provide its justification for use of the section 36(2) exemption, but presented documentation which provided Consort's view that release of the information would be an actionable breach of confidence.

The Commissioner made repeated attempts to compel NHS Lothian to identify the specific information within the 2,400 pages of information and 27 associated schedules it considered to be exempt and for its own submission on the application of the exemption to that information. During the course of the investigation, the Commissioner issued 2 legally enforceable Information Notices to the authority, requiring a full submission and reminding it of its responsibilities under FOISA. During this period, NHS Lothian identified 5 sections of the contract which it believed fell within the scope of the section 38 (personal information) exemption, but did not provide justifications for the use of any exemption.

NHS Lothian's estimate of the cost of making a redacted version of the contract available to Ms Docherty was inaccurate and unreasonable.

NHS Lothian initially provided 2,400 pages of information and associated schedules to the Commissioner. Later it discovered some 5000 further pages had been overlooked, but which fell into the scope of the information request.

Freedom of Information Legislation

  • 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.
  • 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.


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