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Environmental Information (Scotland) Regulations and Public Sector Contracts
57. Unless an exception provided for under the EISRs is applicable in relation to any particular information and the balancing of public interest favours refusal, a Scottish public authority will be obliged to disclose that information in response to a request, regardless of the terms of any contract. When entering into (or reviewing) contracts Scottish public authorities should resist contractual terms that purport to restrict the disclosure of environmental information held by the authority beyond the restrictions permitted by the EISRs. Scottish public authorities cannot "contract out" of their obligations under the Regulations. This means that they cannot sign a contract that gives an undertaking to a private firm (or anyone else) that they will not comply with their obligations under the Regulations.
58. When entering into contracts with contractors, Scottish public authorities may be under pressure to accept confidentiality clauses so that information relating to the terms of the contract, its value and performance will be exempt from disclosure. Scottish public authorities should resist such clauses wherever possible. Where, exceptionally, it is necessary to include non-disclosure provisions in a contract, an option could be to agree with the contractor a schedule of the contract that clearly identifies information that should not be disclosed. Scottish public authorities will need to take care when drawing up any such schedule, and be aware that any restrictions on disclosure provided for could potentially be overridden by their obligations under the EISRs, as described above.
59. In any event, Scottish public authorities should not agree to hold information 'in confidence' which is not in fact confidential in nature. Scottish public authorities should be aware that certain exceptions including those for commercial confidentiality and voluntarily supplied data, are not available when the information requested is about emissions into the environment.
60. Any acceptance of confidentiality provisions must be for good reasons and capable of being justified to the Scottish Information Commissioner.
61. It is for the Scottish public authority to disclose information pursuant to the EISRs, and not a contractor, unless that contractor has received a request and is itself a body subject to the EISRs. However, a Scottish public authority may have concerns regarding contractual matters and may not wish the contractor to release information without consulting it. In these cases, contracts or other working arrangements should be made to ensure appropriate consultation about the handling of requests for information exchanged between the parties. Any such constraints should be drawn as narrowly as possible, and according to the individual circumstances of the case. Apart from such cases, Scottish public authorities should not impose terms of secrecy on contractors.
62. Under the EISRs, other parties/contractors who are not Scottish public authorities can be subject to the requirements of the EISRs, for example, when they carry out a public environmental function under the control of a Scottish public authority.
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