Most people throughout the UK are aware of the Freedom of Information Act 2000 (“FOIA”). In simplistic terms, the FOIA means that everyone is entitled to access information held by public authorities.
The reality is somewhat more complicated (as some types of information are exempt from disclosure) – particularly so when you start to look at the “commercial interests” of the parties involved.
Who can request information under the FOIA?
Requests under the FOIA can be made by an individual or a company, and will be valid if the request meets the requirements in Section 8:
“(1) In this act any reference to a “request for information” is a reference to such a request which –
- Is in writing,
- States the name of the applicant and address for correspondence, and
- Describes the information requested.
(2) For the purposes of subsection (1)(a), a request is to be treated as a request made in writing where the text of the request –
- Is transmitted by electronic means,
- Is received in legible form, and
- Is capable of being used for subsequent reference.”
The ICO’s guidance states that “a requester can be an individual, a company or an organisation, but in each case Section 8(1)(b) requires that a request for information must include the name of the requested… If the request is from a company, then the authority should accept either its full registered name or a name that exists as a legal entity (such as a trading name) as valid”.
What kind of information can be requested?
Generally, any information held by a public authority can be requested under the FOIA.
However, there are a number of exemptions to be mindful of when making a request under the FOIA. Some of these are absolute, fairly self-explanatory and unsurprising – for example, information which is required for the purpose of safeguarding national security is exempt from disclosure under the FOIA.
Other exemptions are much broader, and their scope less clear. Section 43(2) of the 2000 Act provides the following:
“(1) Information is exempt if it constitutes a trade secret.
(2) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).
(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice the interests mentioned in subsection (2).”
What constitutes a “commercial interest” for the purposes of the FOIA?
The ICO’s guidance states that “a commercial interest relates to a person’s ability to participate competitively in a commercial activity”.
It lists a number of examples of activities carried out by public authorities which may involve the holding of information which, if disclosed, could potentially prejudice commercial interests, including, but not limited to: procurement/tendering, regulatory activities (e.g. issuing licences), publicly owned companies carrying out commercial activities, policy implementation and PFI’s/PPP’s.
To satisfy the exemption under section 43(2), the public authority needs to satisfy the “prejudice test”; that the disclosure of information would (or would be likely to) prejudice the commercial interests of any person (whether that be the public authority itself, or a third party).
If the information would be likely to prejudice the commercial interests of a third party, the public authority needs to have evidence that shows that the third party has actual concerns that the disclosure of the information may prejudice their interests (speculation by the public authority is insufficient). If a public authority has concerns that the disclosure of information may prejudice a third parties interests, they should consult with this third party at the time they receive the request for information.
An exemption to the exemption?
Section 43 is qualified by the “public interest test”. This means that, when considering whether the exemption on the grounds of protecting commercial interests is applicable, the public authority needs to balance the public interest in disclosing the information, against the prejudice to the commercial interests of the relevant person/body.
If you would like any further information, or if you have any queries, Gilson Gray can provide advice on all aspects of FOIA requests.
Johanna Crowther is a solicitor in the Commercial Litigation team at Gilson Gray.
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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.