04/01/2018 - Extract from Review
'I have a number of preliminary observations to make.
In the 1st instance I would note that the Trust have failed to comply with the appropriate timescale for response, their reply of 3rd December being well out with the 20 working day period set out in legislation.
I note from consideration of the file that an explanation has already been offered as to the reasons surrounding this delay and an apology made.
I would merely take this opportunity to reiterate that apology on behalf of the organisation.
Secondly, and taking aside the merits or otherwise of assessing the information as being commercially sensitive, I am of the view that the reference to the exemption under section 33 (2) (b) of the Freedom of Information (Scotland) Act 2002 (“the Act”) is misplaced insofar as it relates to the financial interests of an administration of the United Kingdom.
I also consider that, (assuming that the reference was intended to reflect section 33 (1) (b) i.e. the commercial interests of the Trust) it in any event fails to properly address the 2nd part of the test which requires consideration of the public interest.
It is clear from the Trust response that there is no reference to the public interest and no explicit examination of the competing factors which would fall to be assessed in this process.
On these points alone I am therefore satisfied that the Trust have failed to fully comply with their obligations under the Act.
Turning to the items numbered 1 and 5 above, whilst I am satisfied that there are certain commercial benefits in maintaining some confidentiality there do appear to be certain extracts from the reports which are not to my mind so sensitive that they could not be released.
There is a general argument that disclosure of annual board plans, with schedules of work, details of plans to be worked-up or considered, budget details including budget pressures, bids for additional resources and items still subject to negotiation with third parties including the Council will seriously damage the Trust’s ability to deliver services and budgets on behalf of the Council and its tax payers given the competitive nature of the market place in which it operates in the local area and the use of such information by competitors to maintain current advantages in customer numbers.
I do however feel that certain portions of the information can be released without causing prejudice and as such I would provide you with these extracts (as per the attached).'
Gerry Mahon
Chief Officer - Legal & Procurement
Chief Executive Department