SCOTLAND’S Information Commissioner has called for an end to the use of confidentiality clauses in contracts between public authorities and contractors.

Speaking to MSPs on Holyrood’s Public Audit Committee, Daren Fitzhenry suggested they are often being used as a reason to withhold something that has been requested under a freedom of information (FOI) request.

In written evidence to the committee, Fitzhenry proposed a ban on the clauses, instead encouraging the use of the commercial exemption if the release of information could be commercially sensitive.

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He told MSPs: “Very often we can see that confidentiality clauses are inserted into contracts and they’re thereafter used in saying ‘well we can’t provide that information because we’re subject to this duty of confidentiality’.

“Quite apart from any commercial harm or having to look at the seriousness of the commercial harm, we’re looking at the confidentiality exemption rather than the serious harm exemption.

“So in practice, it’s one which, while we look at the issues of confidentiality and public interest in determining whether confidentiality exists and whether the right exists, it can be a block to providing information.”

He added: “If it’s included in the contract it makes it easier to exclude the provision of information. What we’re hoping to do is by removing that, we’re essentially saying well, if there is a commercial reason why you can’t provide the information, rely on the commercial exemption.”

SNP MSP Colin Beattie asked how a change in FOI legislation could work in practice legally, as well as asking whether it would be possible for Parliament to make such a change.

Fitzhenry replied: “Yes, in my view you certainly could do that. The Act of Parliament could say that this should not be a clause in future contracts and it can set aside what the limitations are.”

He added: “In my view, it would be open to the Parliament to decide to do that.”