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Decision 099/2026

Decision 099/2026:  Hosting of Tour de France

 Authority: City of Edinburgh Council
Case Ref: 202501971

 

Summary

The Applicant asked the Authority for details of its hosting arrangement for the Tour de France.   The Authority refused to provide the information because it considered it to be commercially sensitive.  The Commissioner investigated and found that the Authority had failed to provide adequate submissions to justify its position.  He required the Authority to disclose the withheld information to the Applicant.

Background

  1. On 17 September 2025, the Applicant made a request to the Authority.  He asked for Document 7.1/2, which was discussed “in camera” at the meeting of the Culture and Communities Committee on 10 September 2025.
  2. By way of background, Document 7.1/2 consists of the two documents comprising the appendices to a report presented to the Culture and Communities Committee.  The published report describes Appendix 1 as a “host local agreement” for the Grand Départ of the Tour de France and Appendix 2 as a Scottish Government letter.
  3. The Authority responded on 14 October 2025.  It withheld the information requested under the exemption in section 26 of FOISA as the information was considered exempt under the Local Government (Scotland) Act 1973 (the 1973 Act).
  4. Later that same day, the Applicant wrote to the Authority requesting a review of its decision. He stated that he was dissatisfied with the decision because he did not agree that the exemption in section 26 of FOISA applied.
  5. The Authority notified the Applicant of the outcome of its review on 23 October 2025, which fully upheld its original decision. 
  6. On 26 October 2025, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  He stated that he was dissatisfied with the outcome of the Authority’s review, for the reasons set out in his requirement for review.

Investigation

  1. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
  2. On 17 December 2025, the Authority was notified in writing that the Applicant had made a valid application.  The Authority was asked to send the Commissioner the information that had been withheld from the Applicant.  The Authority provided the information, and the case was subsequently allocated to an investigating officer. 
  3. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.  The Authority was invited to comment on this application and to answer specific questions.
  4. In response to these questions, the Authority advised the Commissioner and the Applicant that it no longer wished to rely upon the exemption in section 26 of FOISA.  It confirmed that it instead withheld the information under the exemption in section 33(1)(b) of FOISA, with an explanation.
  5. In light of this change in position, and the Applicant’s agreement to amend the grounds of his appeal to focus on the application of the exemption in section 33(1)(b) of FOISA only, the Commissioner will not consider the application of the exemption in section 26 of FOISA further in this decision notice.
  6. Following its change of position, the Authority was given a further opportunity to provide comments on this application and to answer specific questions regarding the application of the exemption in section 33(1)(b) of FOISA.   However, the Authority did not provide any comments in response to these questions.

Commissioner’s analysis and findings

  1. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority

Section 33(1)(b) – Commercial interests and the economy

  1. Section 33(1)(b) of FOISA provides that information is exempt information if its disclosure would, or would be likely to, prejudice substantially the commercial interests of any person (including, without prejudice to that generality, a Scottish public authority).  This exemption is subject to the public interest test in section 2(1)(b) of FOISA.

  2. There are several elements a Scottish public authority needs to demonstrate are present when relying on this exemption. It needs to establish:

    (i) whose commercial interests would (or would be likely to) be harmed by disclosure

    (ii) the nature of those commercial interests, and

    (iii) how those interests would (or would be likely to) be prejudiced substantially by disclosure

  3. The prejudice must be substantial, in other words of real and demonstrable significance. Where the authority considers that the commercial interests of a third party would (or would be likely to) be harmed, it must make this clear.  Generally, while the final decision on disclosure will always be one for the authority, it will assist matters if the third party has been consulted on the elements referred to above.

The Authority’s submissions

  1. As stated above, the Authority did not provide submissions to the Commissioner during his investigation in response to his questions regarding the application of the exemption in section 33(1)(b) of FOISA. He will therefore be limited to considering the reasons the Authority set out for the application of this exemption when it informed the Applicant of its change of position.
  2. The Authority explained that the withheld information is the hosting agreement between the Authority and Grand Départ GB 2027 Ltd, which details the financial arrangements associated with the hosting of the Grand Départ of the 2027 Tour de France in Edinburgh. 
  3. The Authority argued that disclosure of these arrangements was likely to cause harm, through substantial prejudice, to those who were party to the agreement. 
  4. As claimed by the Authority, the harm would be that disclosure would place it at a disadvantage if and when it chose to engage in similar proceedings in the future, as disclosure would make apparent to other parties what terms the Authority could and would accept. Likewise, it considered that a similar harm would be experienced by the organisers of the Grand Départ as they engaged in such proceedings on a frequent basis.

The Applicant’s submissions

  1. The Applicant submitted that the Authority’s changing grounds for withholding the information showed that it was casting around for a justification, when the real reason was to avoid criticism or political embarrassment.  He also commented that the bar for substantial prejudice was a high one. 
  2. The Applicant argued that the Authority was unlikely to “engage in similar proceedings” and questioned what “similar” meant in this context.  He suggested that, if the Authority were in a “similar” position in future, it could reasonably be expected to rely on its negotiating skills to achieve an outcome that was in the public interest and that it could point to the previous disclosure of the information requested (if it were disclosed) as showing the necessity of being able to persuade the residents of Edinburgh that it was getting value for public money.

The Commissioner’s view

  1. For any exemption in FOISA to be upheld, the Commissioner must have sufficient arguments from the Authority to satisfy him that the exemption applies (particularly where there is a harm test to be met) and, where appropriate, that the public interest maintaining the exemption outweighs that in disclosure.  These arguments must, with reference to the requirements of the relevant exemption, be adequate in terms of substance and specific (as appropriate) to the information requested, the impact of disclosure and the circumstances in which it would be disclosed.
  2. In this case, notwithstanding the opportunity given to provide comments, the Commissioner is not satisfied that the Authority has met the above requirements in relation to the withheld information. 
  3. The Commissioner has carefully considered the withheld information.  Having done so, his view is that the majority of the hosting appears to be high-level or comprised of standard clauses that would be anticipated for an event of this sort.  The Authority has not explained how the disclosure of this high-level information or standard clauses would, or would be likely to, prejudice the legitimate interests of either party (substantially or otherwise).
  4. While the Commissioner must be careful not to reveal the specific content of the withheld information, he acknowledges that some of the hosting agreement contains information that is more specific to the particular circumstances of this event.  However, as stated above, the Authority has failed to provide the Commissioner with any comments to address the specific information withheld and the harm that would, or would be likely to, result from disclosure of that specific information.  Instead, the Authority has withheld the hosting agreement in full and only provided generic arguments in support of its application of the exemption in section 33(1)(b) of FOISA.
  5. While the Authority submitted that revealing the position agreed between itself and the Grand Départ, and thus the terms it was willing to agree, would harm its position in future negotiations, the Commissioner cannot be satisfied that the Authority has adequately explained or demonstrated how this concern relates to the particular information withheld. 
  6. On the question of harm, the Commissioner must be persuaded by the submissions he has received from the Authority.  In other words, it is for the Authority to provide the required evidence of harm – it is not for the Commissioner to find it or make the case on behalf of the Authority.  Consequently, in this case, the Commissioner is not satisfied that the information requested was properly withheld under this exemption.  Having reached that conclusion, the Commissioner is not required to consider the public interest test in section 2(1)(b) of FOISA.
  7. The Commissioner therefore requires the Authority to disclose the withheld information (other than signatures that constitute third-party personal data) to the Applicant, by the date stated below.

Decision

The Commissioner finds that the Authority failed to comply with Part 1 (in particular, section 1(1))_ of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant. 

Specifically, the Commissioner finds that the Authority has failed to justify its reliance on the exemption in section 33(1)(b) of FOISA.  As a result, the Commissioner finds that the Authority was not entitled to rely on the exemption in section 33(1)(b) of FOISA and that, by withholding the information requested, it failed to comply with section 1(1) of FOISA.

The Commissioner therefore requires the Authority to disclose the requested information (other than signatures that constitute third-party personal data), by 22 June 2026.

Appeal

Should either the Applicant or the Authority 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.

Enforcement

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply.  The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

 

Euan McCulloch

Head of Enforcement


7 May 2026

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