Freedom of Information Act 2000 – impact on the property sector

The Freedom of Information Act 2000 (FOIA) finally came into force on 1 January but its potential impact on the real estate sector has received little attention.

The FOIA enables any individual or company to request information held by a public authority at the time of the request; the public authority will have 20 days to respond. Public authorities include government departments, local and health authorities and others.

In theory at least the FOIA could be used to gain competitive advantage. For example a property company could request information about a property that it was considering purchasing or a construction company could ask for information about prices and rates submitted by a competitor in a previous bid - even the reasons that a particular bidder was selected which could form the basis of legal action if there is evidence of unfairness.

Not surprisingly, certain types of information are exempt from disclosure. Some exemptions are absolute and others are qualified and may be overridden if there is a greater public interest in disclosure. The FOIA gives the ability to appeal against a refusal to disclose first to the Information Commissioner and then to the Information Tribunal.

In the commercial sphere two exemptions are probably most relevant. Section 41 FOIA exempts confidential information – if the disclosure would be actionable. This is an absolute exemption. Section 43 FOIA gives a qualified exemption to information that if disclosed is likely to prejudice the commercial interests of any party.

The FOIA gives rise to both opportunity and dangers and it will become important to take steps to assess and manage the risks when dealing with public authorities.

If you require any further information on this issue, please contact Jenny Joint at jenny.joint@cms-cmck.com or on +44 (0) 20 7367 2943.