Avoiding Freedom of Information through non-disclosure agreements

Why are public officials signing up to non-disclosure agreements about public procurement?  It’s fairly obvious why private contractors might want issues to be confidential;  they don’t want to be subject to public scrutiny, they don’t want to be dealing with members of the public, and they may just get a commercial advantage from their inside information.  It’s not clear that public services should be going along with that.

Last July, I attended a public meeting about the roll-out of faster broadband in my area.  The council official taking the meeting explained that 98% of the county would be covered in due course, and that some leftover communities would have to band together to develop their own systems, but he couldn’t tell us which ones, as he and other council officials were bound by a contract protecting the ‘commercial confidentiality’ of the supplier.  We might, he told us, be able to spot where the exchange cabinets would be by looking out for them in the street.  There was something wrong with that.  Part of the problem is that asking community organisations to devote time and effort to a  process that in most cases will be superfluous is hardly reasonable.  Trying to get information about government-sponsored  activity by sending out the Boy Scouts to track it down doesn’t make much more sense.

At the time, I came back home and directly sent off a FoI request to Digital Scotland, which was answered with irrelevant information.  Then in August, I asked for a review, which hasn’t been replied to.  Since then the information affecting my area has been made public – and in any case, I know where the cabinet is, so I was able to ask the people in a white van when they pulled up next to it with a clipboard.   Today I’ve been discussing the issues with someone from the Scottish Information Commissioner’s office.  All the Commissioner can do is to determine whether a decision not to release information is lawful and consistent with the legislation.  In both cases, the answer is ‘yes’; there may have been a minor breach in failing to review, but what I’d get from pursuing that is access to information which is now public anyway.

There is a point of principle here.   It seems to me that information about a publicly funded project, developed to serve citizens as a matter of public policy and dependent exclusively on development in public places ought to be public knowledge.  The effect of contracts that protect commercial confidentiality is to nullify the laws we have on Freedom of Information.    That’s hardly consistent  with the standard principles of governance, transparency and accountability we expect from public services; and it’s certainly not in the public interest.

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