Commentary on Provisions Gathering and use of information Section 15: Confidentiality of information
38.Section 15 contains a confidentiality provision that covers: the Commissioner (including any former Commissioners), the Commissioner’s staff (or past staff), a member of the advisory group established under section 16 (or a former member) and an agent (or former agent) of the Commissioner. These persons would be guilty of an offence if they knowingly or recklessly disclose information which has been obtained in the course of the Commissioner’s activities, and which is not at the time of disclosure, and has not previously been, in the public domain. Accidental disclosure of confidential information (unless as a result of recklessness on the part of the discloser) would not therefore constitute an offence under this provision.
39.There are exceptions set out in subsection (2) under which disclosure is authorised where it is made, for example, with the consent of the person from whom the information was obtained, or where it is necessary for the purposes of exercising the Commissioner’s functions, or where it is made for the purposes of legal proceedings (whether criminal or civil – and including the purposes of the investigation of any offence or suspected offence) or assisting Healthcare Improvement Scotland, the Commissioner for Patient Safety in relation to England or the Scottish Public Services Ombudsmen in exercising their statutory functions.
40.A person who commits an offence is liable to a fine on summary conviction or conviction on indictment. The fine on summary conviction is up to the statutory maximum, which is defined in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 as the prescribed sum under section 225(8) of the Criminal Procedure (Scotland) Act 1995 (currently £10,000). The maximum fine on indictment is unlimited.