Introduction
The Freedom of Information Act 2000 (the Act) came fully into force on 1 January 2005. The Act gives individuals or businesses from any part of the world a general right of access to any information held by a public authority in the UK, including information held prior to the Act coming into force.
The Act creates a risk that commercially sensitive information could become available to competitors or public interest groups. Any businesses dealing with public authorities should therefore be concerned to minimise the risk of disclosure of their confidential information by a public authority. The other side of the coin is the Act provides businesses with an opportunity to discover more about their competitors and relevant government policies.
The general right to information
The Act provides a right of access to all recorded information held by "public authorities", subject to certain exemptions. Any person making a request for information to a public authority is entitled:
- to be informed by the public authority whether it holds the information; and
- if such information is available, to have such information communicated to him.
The Act considers these two rights separately, but in practice they may merge.
Definition of public authority
A wide range of bodies are designated as "Public Authorities" for the purposes of the Act, including government departments, various central and local government bodies, health authorities, advisory committees and agencies, and the Bank of England.
The Secretary of State for Constitutional Affairs also has the power to designate other bodies as public authorities for the purposes of the Act, e.g. companies that exercise an outsourced function from a public company.
Time for compliance and costs
A public authority generally has 20 working days in which to respond to a request for information, and is entitled to charge a fee for providing the information.
Exemptions to disclosure of information
A public authority will not have to disclose information where an exemption applies. These fall into two specific types:
Absolute exemption
Although there are eight categories of information to which an absolute exemption applies, perhaps the most relevant for commercial businesses is "confidential information". Under this category, an absolute exemption applies if the requested information was provided to the public authority in confidence, i.e. if the information was disclosed by the public authority, the disclosure would be an actionable breach of confidence by the public authority.
The following factors are relevant in determining whether an obligation of confidence has arisen:
- the circumstances under which information was provided to the public authority; and
- whether the information has the necessary "quality of confidence", i.e. it must not be trivial, nor must it be readily available by other means.
Companies will need to be very precise about what is marked as confidential; the simple marking of documents with words such as "confidential" will not necessarily ensure that the information will fall within the exemption, as the information may not actually have the necessary "quality of confidence".
The Information Commissioner has advised that public authorities should set out formally the circumstances under which it would regard information as confidential. It has also advised that public authorities should refuse to include contractual terms that purport generally to restrict the disclosure of information held by the authority.
Qualified Exemption
There are 16 categories of information that will only class an exemption if, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information (the "public interest test").
The one of most concern to businesses will be that of "commercially sensitive information". Information will be commercially sensitive if it:
- Constitutes a trade secret; or
- its disclosure would or would be likely to prejudice the commercial interests of any person (including the public authority)
- and the public interest in not disclosing the information outweighs the public interest in disclosing it.
If the information is used for the "purpose of trade", or if it is obvious that the owner would regard the release of the information to be commercially advantageous to rivals, this may constitute a trade secret.
"Commercial interests" is a wider concept, relating to a person's ability to successfully participate in a commercial activity. In deciding whether the release of such information would prejudice someone's commercial interests it would be necessary to consider all of the surrounding circumstances. For example, the price submitted by a contractor in a PFI bid is more likely to be commercially sensitive during the tendering process, but less likely to be so once the contract has been awarded.
Compliance and complaints
Any person who believes that their request for information has not been dealt with correctly can make a complaint to the Information Commissioner, who has responsibility for policing the Act. His decision on any complaint can then be appealed to the Information Tribunal.
Guidance
The Information Commissioner and the Department for Constitutional Affairs have both published guidance (available by clicking here and here respectively) on the Act, including guidance on "confidential information", "commercially sensitive information", and on the public interest test.
The Lord Chancellor has published a Code of Practice, setting out the standards public authorities are expected to meet in order to comply with their obligations. The Code also provides guidance on the procedures for complaints that public authorities should follow.
Remedies and protection
Once the information has been released into the public domain, the commercial and legal reality is that it is virtually impossible to halt the damage caused and to stop its further release.
The Code has made it clear that a public authority is unable to contract out of its obligations under the Act when negotiating public sector contracts.
It is therefore essential for a business to be in contact with the public authority with which it deals. If the public authority agrees to notify the business that it has received an information request, and that it intends to release information that is potentially confidential, there is an opportunity to prevent disclosure via court injunction, if it can be shown that the information falls within one of the exemptions.
The following actions will help to minimise the risk of confidential or commercially sensitive information being released into the public domain:
- Review what information has already been provided to public authorities
- Ensure clear procedures are in place for any future release of information to a public authority
- Try to agree a consultation process with the relevant public authorities to ensure that the company is notified of any requests for its information
- Try to ensure that the company is given a specified period of prior notice regarding the release of its information by a public authority. This notice period would give the company a time frame within which to decide whether or not to seek an injunction prior to the release of the information.
