Mr David McNie and West Lothian Council

Factual and Procedural Background

The Appellant requested from Company A information regarding the costs and tendering process for photographic services. Specifically, the Appellant sought detailed costs for ten aspects of the successful tender, copies of notes and minutes from the tender interview, and an audit report examining the handling of the tender award. Company A provided the requested information but redacted individual monetary values for certain points, citing exemptions under sections 33(1)(b) and 36(2) of the Freedom of Information (Scotland) Act 2002 (FOISA). The Appellant requested a review of this decision, which Company A upheld. The Appellant then appealed to the Scottish Information Commissioner. The Commissioner investigated and found that Company A correctly applied the exemption under section 36(2) but misapplied the exemption under section 33(1)(b). Additionally, Company A failed to respond to the Appellant's request for review within the statutory timescale.

Legal Issues Presented

1. Whether the withheld individual monetary values relating to the photographic services tender were exempt from disclosure under section 33(1)(b) of FOISA concerning commercial interests.
2. Whether the withheld information was exempt under section 36(2) of FOISA due to confidentiality obligations and an actionable breach of confidence.
3. Whether Company A complied with the procedural requirements of FOISA in responding to the Appellant's request for review within the prescribed timescale.

Arguments of the Parties

Company A's Arguments

• The withheld monetary values were exempt under section 33(1)(b) because disclosure would substantially prejudice the commercial interests of the incumbent contractor, who was in competition with the Appellant.
• Disclosure would allow the Appellant to estimate the contractor’s prices in future tendering exercises, giving a competitive advantage and undermining confidence in the tendering process.
• Disclosure would jeopardise Company A’s relationships with contractors and impair its role as a purchaser of services.
• The public interest favored maintaining the exemption as the reasons for awarding the contract were already disclosed, including minutes and interview notes.
• The withheld information was also exempt under section 36(2) because it was obtained from the incumbent contractor under an obligation of confidentiality, breach of which would be actionable.
• Contractual confidentiality provisions continued beyond the contract term, obliging Company A to withhold the information.
• The incumbent contractor expressed concern that disclosure would cause commercial damage beyond the specific contract.
• Company A breached FOISA by failing to respond to the Appellant’s request for review within the statutory 20 working day period.

Scottish Information Commissioner's Findings

• The exemption under section 33(1)(b) was misapplied because the withheld financial information was three years old and the contract specification for future tenders was expected to be significantly different.
• The passage of time and changes in market conditions reduced the likelihood of substantial prejudice from disclosure.
• The exemption under section 36(2) was correctly applied because the information was obtained from the contractor under clear confidentiality obligations, and unauthorized disclosure would cause actionable damage.
• The public interest test for section 36(2) differs from that under FOISA, with a strong presumption in favor of maintaining confidentiality unless disclosure is necessary to prevent wrongdoing or ensure public scrutiny, which was not established here.
• Company A failed to comply with the statutory timescale for responding to the Appellant’s request for review, constituting a procedural breach of FOISA.

Table of Precedents Cited

Court's Reasoning and Analysis

The Commissioner first analyzed the application of section 33(1)(b), which protects commercial interests from substantial prejudice due to disclosure. The Council argued that disclosure would give the Appellant a competitive advantage. However, the Commissioner found that the financial information was three years old and that future tenders would differ significantly, reducing the likelihood of real and substantial harm. The harm must be significant, real, and likely in the near future, not hypothetical or marginal. Given these factors, the Commissioner concluded the exemption was misapplied.

Regarding section 36(2), the Commissioner applied a two-stage test: (1) whether the information was obtained from another person, and (2) whether disclosure would constitute an actionable breach of confidence. The withheld information was provided by the incumbent contractor under express confidentiality obligations in the contract, continuing beyond the contract term. Disclosure without authorization would cause damage to the contractor. The Commissioner accepted that these conditions were met, making the exemption under section 36(2) properly applied.

The Commissioner noted that section 36(2) is an absolute exemption not subject to the FOISA public interest test, but common law allows confidentiality to be overridden in exceptional public interest cases, which were not demonstrated here. The Commissioner further identified that Company A failed to comply with the procedural requirement to respond to the Appellant’s request for review within the statutory 20 working days, constituting a breach of FOISA.

Holding and Implications

The Commissioner held that Company A correctly applied the exemption under section 36(2) of FOISA and incorrectly applied the exemption under section 33(1)(b) of FOISA to the withheld information. Additionally, Company A breached FOISA by failing to respond to the request for review within the required timescale.

The direct effect of this decision is that Company A must disclose the individual monetary values withheld under section 33(1)(b) but may continue to withhold information protected under section 36(2). No new legal precedent was established beyond the application of existing statutory provisions and principles to the facts of this case.