Decision 020/2014 Mr Tom Gordon, Sunday Herald, and the Scottish Ministers
Identity of external contractors - Defence and Security workstream
Reference No: 201301831
Decision Date: 10 February 2014
Summary
On 22 May 2013, Mr Gordon asked the Scottish Ministers (the Ministers) to supply the names of the two external contractors who worked on the Ministers' Defence and Security workstream, in preparation for the possibility of independence. On review, the Ministers withheld the information as they considered disclosure would, or would be likely to, prejudice substantially the effective conduct of public affairs.
Following an investigation, the Commissioner accepted that disclosure of the information would have been likely to cause substantial prejudice to the effective conduct of public affairs, at the time the Ministers carried out their review, and so the Ministers were entitled, under FOISA, to withhold it.
In reaching this conclusion, the Commissioner acknowledged that the information had been disclosed by the Ministers during her investigation, in error to another journalist and then to Mr Gordon. However, this could not have any bearing on the validity of the Ministers' decision which had to consider the circumstances at the time of their review.
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 30(c) (Prejudice to the effective conduct of public affairs)
The full text of each of the statutory provisions cited above is reproduced in the Appendix to this decision. The Appendix forms part of this decision.
Background
1. On 22 May 2013, Mr Gordon wrote to the Ministers, asking for the names of four external consultants hired by the Ministers to help with their independence workstreams.
2. The Ministers responded on 21 June 2013, providing the names of the two consultants contracted to support the Welfare workstream. They withheld the names of those who worked on the Defence and Security workstream, citing section 30(c) of FOISA. The Ministers stated that disclosure would be likely to prejudice their working relationship with these consultants substantially, and could lead to them withdrawing their services altogether.
3. On 25 June 2013, Mr Gordon wrote to the Ministers requesting a review of their decision. He did not believe consultants advising the Ministers on defence matters could have any reasonable expectation of not being named.
4. The Ministers notified Mr Gordon of the outcome of their review on 22 July 2013, upholding their reliance on section 30(c) of FOISA. They noted the circumstances and timing of the case (before publication of the White Paper on independence) and concluded that the greater public interest lay in ensuring that work on defence and security policy in relation to constitutional change could involve external experts, thus ensuring that the White Paper made a well-informed contribution to public debate in this area.
5. On 6 August 2013, Mr Gordon wrote to the Commissioner, stating that he was dissatisfied with the outcome of the Ministers' review and applying to the Commissioner for a decision in terms of section 47(1) of FOISA.
6. The application was validated by establishing that Mr Gordon made a request for information to a Scottish public authority and applied to the Commissioner for a decision only after asking the authority to review its response to that request. The case was then allocated to an investigating officer.
Investigation
7. The investigating officer contacted the Ministers, informing them that an application had been received from Mr Gordon and giving them an opportunity to provide comments on the application (as required by section 49(3)(a) of FOISA). They were asked to provide the withheld information and to justify their application of section 30(c) of FOISA.
8. The Ministers provided the names of the contractors, along with further submissions on their application of section 30(c) of FOISA and supporting comment from the consultants.
9. On 13 October 2013, the Sunday Post newspaper published a news article which named the two contractors. The Ministers subsequently explained to the Commissioner that this information had been disclosed in error, in response to a request by a Sunday Post journalist for related information
10. The White Paper referred to in paragraph 4 above was published on 26 November 2013.
11. In the light of the public disclosure of the consultants' names, the Ministers did then provide the names to Mr Gordon. They adhered to their decision to withhold the information in dealing with his request and requirement for review.
12. Mr Gordon did not accept that the Ministers were justified in withholding the information under section 30(c) of FOISA and continued to seek a decision from the Commissioner.
Commissioner's analysis and findings
13. In coming to a decision on this matter, the Commissioner considered the withheld information and the relevant submissions, or parts of submissions, made to her by both Mr Gordon and the Ministers. She is satisfied that no matter of relevance has been overlooked.
14. The Commissioner would emphasise that her role in this case is to consider the outcome of the Ministers' review, as communicated to Mr Gordon on 22 July 2013. Therefore, she must consider the information and the exemption applied in the context which existed at that time. She cannot consider whether subsequent events should have any bearing on the decision to withhold the information, although these events might have a bearing on whether any action is required on the Ministers' part.
Section 30 of FOISA - prejudice to the effective conduct of public affairs
15. Section 30(c) exempts information if its disclosure "would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs." "Otherwise" is used to differentiate this exemption from the other varieties of substantial prejudice covered in other parts of section 30, such as substantial inhibition to the free and frank provision of advice or exchange of views.
16. Section 30(c) applies where the harm caused, or likely to be caused, by disclosure is at the level of substantial prejudice. Although the term "substantial prejudice" is not defined in FOISA, the Commissioner looks for public authorities to demonstrate a real risk or likelihood that actual harm will occur in the near (certainly foreseeable) future, not simply that harm is a remote possibility. To be substantial, the harm must be of real and demonstrable significance.
Submissions from the Ministers
17. The Ministers submitted that the consultants were involved in contributing to the preparation of a policy proposition on defence and security in an independent Scotland. They explained that the criteria applied to identify expert advisers who met the requirements for such a role produced an extremely limited number of potential contractors. They also pointed out that external input was essential in this reserved area, given the limited relevant experience within the Scottish Government. From their survey of the market, they believed the blend of skills, expertise and credibility offered by these consultants to be unique in addressing the requirements for this essential piece of work.
18. The Ministers also provided supporting submissions from the consultants in relation to the difficulties disclosure would present for them in continuing to provide the necessary advice. They explained how the requirement for these services was ongoing while they dealt with the request and requirement for review.
Submissions from Mr Gordon
19. Mr Gordon submitted that, in his view, it was unsustainable to argue that the consultants should remain anonymous, given that what he considered to have been routine naming of consultants across the public sector since FOISA came into force. He believed they should have a reasonable expectation of being named.
20. Mr Gordon did not believe evidence had been produced to show that the contractors would turn down future work with the Scottish Government if they were named. He did not think the standard of prejudice required by section 30(c) of FOISA could be met in this case.
The Commissioner's conclusions
21. The Commissioner acknowledges that in many areas of the public sector the names of contractors will be made public, and that there may be circumstances in which the publication of such information is required. In this case, she is considering whether the Ministers were required to disclose the names of these particular consultants under FOISA.
22. The Commissioner has taken into account that the consultants were engaged to carry out work in an area of some sensitivity, bearing in mind that defence and security are matters reserved to the UK Government. She also acknowledges the importance of the Ministers having access to robust expert advice in this area, which would require to be external, in the context of the forthcoming referendum (and particularly with a view to addressing defence and security matters effectively in the White Paper published on 26 November 2013). She accepts that there would be a limited field of suitable contractors. The Commissioner must give weight to the fact that the Ministers' work on the White Paper had yet to be concluded at the time of the review.
23. The Commissioner notes Mr Gordon's assertion that in his view the consultants' unwillingness to carry out further work (in the event of disclosure) has not been evidenced. However, having considered all the relevant material provided from both the Ministers and the consultants, she accepts that the Ministers have demonstrated a genuine risk of this happening (or, at least, of the working relationship between the two being compromised to such an extent that it would impact on the outcome of the work). For as long as there remained a significant requirement for work of this kind, particularly given the need to ensure that this area was addressed adequately in the White Paper, the Commissioner accepts either the loss of the current consultants or significant damage to the working relationship would have been substantially prejudicial to the effective conduct of public affairs.
24. The Commissioner therefore concludes, having taken taking all of the relevant factors at the time of the Ministers' review into account, that disclosure of the withheld information would have been likely to prejudice substantially the effective conduct of public affairs. She therefore accepts that the information was properly exempted under section 30(c) of FOISA.
The public interest test
25. Section 30(c) of FOISA is a qualified exemption, which means that its application is subject to the public interest test set out in section 2(1)(b) of FOISA. Therefore, having decided that the information is exempt under section 30(c), the Commissioner must go on to consider whether, in all the circumstances of the case, the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption
Submissions from Mr Gordon
26. Mr Gordon highlighted the importance of the public being able to judge the credibility and advice provided to the Ministers on a matter of this importance.
Submissions from the Ministers
27. The Ministers acknowledged the importance of being open and transparent where that could be achieved, but argued that the development of the policy in question was ongoing and at a key point. Its completion, they submitted, required continuity from the same advisers. They argued that removal of these key experts would create a serious vacuum which would be impossible to fill, given the specificity of the work undertaken and the limited field of experts. In the limited time available, they continued, this would effectively undermine the ability of the Scottish Government to provide the public with robust, relevant and necessary information ahead of the referendum, which would not be in the public interest.
The Commissioner's conclusions
28. The Commissioner's role here is to consider whether the Ministers were correct in reaching their decision to withhold information at the time of their review.
29. Considering matters at that time, she accepts that there was some public interest in disclosure, given the general benefits of transparency. She also finds that there was a considerable public interest in ensuring that the Ministers were able to have at their disposal the necessary tools to provide the public with a fully informed understanding of the implications of independence for defence and security, ahead the referendum in September 2014. These tools included the availability of independent, specialist expertise that could only reasonably practicably be provided by the contractors in question. In considering the harm from disclosure, the Commissioner has already acknowledged the risk of this resource being lost.
30. In all the circumstances of this case, the Commissioner has concluded that, at the time the Ministers dealt with Mr Gordon's requirement for review, the public interest in disclosing the withheld information was outweighed by that in maintaining the exemption in section 30(c) of FOISA. Therefore, the Commissioner finds that the Ministers were entitled to withhold the information in line with section 30(c) of FOISA.
DECISION
The Commissioner finds that the Scottish Ministers complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in dealing with the information request from Mr Gordon.
Appeal
Should either Mr Gordon or the Scottish Ministers wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of intimation of this decision.
Rosemary Agnew
Scottish Information Commissioner
10 February 2014
Appendix
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002
1 General entitlement
(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.
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(6) This section is subject to sections 2, 9, 12 and 14.
2 Effect of exemptions
(1) To information which is exempt information by virtue of any provision of Part 2, section1 applies only to the extent that -
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(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.
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30 Prejudice to effective conduct of public affairs
Information is exempt information if its disclosure under this Act-
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(c) would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.
