"Secrecy" agreements no guarantee of confidentiality

by EWAN LAMB

A six-year confidentiality agreement like the one signed by Scottish Borders Council and New Earth Solutions in March 2015 after their 24-year waste management contract collapsed in disarray does not mean parties can always rely on such agreements to withhold information from the public.

That is the significant conclusion reached by Scottish Information Commissioner (SIC) Rosemary Agnew who, as we reported last week, has ruled that SBC must release a single line of "secret" text to a Freedom of Information requester.

The Commissioner's Decision Notice in this case reveals that the local authority and their contractor, who could not deliver a state-of-the-art waste management facility at Easter Langlee after running into insurmountable technical and financial issues, re-signed their confidentiality agreement a month after severing their business relationship. Under the terms of that agreement disclosure of commercially sensitive information was to have been forbidden until March 2021.

During her investigation into SBC's refusal to provide the requester with the information he asked for, SBC claimed their confidentiality clause applied to the requested information. Apparently the definition of confidential information in the agreement with NES is "any and all information of a confidential nature relating to the other party, either in writing, orally or in any other form."

At the same time the agreement sought to recognise the existence of the Freedom of Information and Environmental Information regulations (EIRs). However, as the Decision Notice goes on to explain, the council took the view that where an exemption applied, they should seek to preserve the integrity of the confidentiality agreement and act in accordance with that exemption.

But according to the SIC, she does not accept that the existence of a confidentiality agreement will, in itself, mean that all information captured by such a clause should be, or will be, automatically considered confidential.

As Ms Agnew rightly asserts: "To accept such a proposition would essentially give public authorities the ability to contract out of their obligations under the EIRs, regardless of whether the information is actually confidential".

Her report reveals that a separate clause in the SBC/NES contract recognises that, regardless of their agreement, there will be times when information must be disclosed by the council in order to allow it to comply with its statutory duties.

Yet SBC has sought to invoke the provisions of its 'secrecy' agreement on no fewer than four occasions when requests for information about the waste contract fiasco were submitted to the local authority. Three other linked investigations by the SIC are continuing with decisions expected at some point in the future.

In this first case concerning SBC's decision to stand as guarantor for a £315,000 bond on behalf of NES (Scottish Borders) Ltd, the contractors selected to build the Easter Langlee plant, Ms Agnew has firmly rejected the council's confidentiality arguments.

"The Commissioner has considered all of these arguments carefully but she is not persuaded that disclosure of the withheld information would cause, or be likely to cause, substantial harm to a legitimate economic interest", she concludes.