Press statement:
Financial security payment by Scottish Borders Council

The Scottish Information Commissioner issued a decision on 26 November requiring Scottish Borders Council to disclose information about financial security it provided to the Scottish Environment Protection Agency on behalf of New Earth Solutions (Scottish Borders) Ltd (NES). NES was contracted to build a waste management facility in the Borders but earlier this year the Council announced that it was no longer proceeding with the contract.

A member of the public made an information request asking the Council for an explanation about why it had agreed to provide financial security on behalf of NES. The Council refused to disclose the information, arguing that it was exempt from disclosure under the Environmental Information (Scotland) Regulations 2004 (the EIRs).

The EIRs are similar to Scotland's freedom of information law, but provide the public with a right of access to the environmental information held by Scottish public bodies. The Council argued that the withheld information was covered by the provision in the EIRs which protects the confidentiality of commercial information (regulation 10(5)(e)).

During the Commissioner's investigation the Council reconsidered its handling of the request, voluntarily disclosing most of the information to the requester. It continued to withhold part of one sentence in a single document - a committee report by the Council's Director of Environment and Infrastructure - on the grounds that that this information was commercially confidential. The Council argued that the withheld text would harm NES's legitimate economic interests, in that it gave a clear indication of the financial health of the company.

The Commissioner disagreed. The Commissioner did not accept the Council's arguments about why NES's economic interests would be harmed and ordered disclosure of the information.

In coming to this decision, the Commissioner took into account a range of factors, including:

  • The age of the withheld information which dates from March 2012
  • The fact that annual accounts containing information on NES's financial health are publicly available from Companies House
  • The level of detail in the withheld information.

The Commissioner has given the Council until 11 January 2016 to disclose the withheld information to the requester.

The full text of the Commissioner's decision can be read at:

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