freedom of information.co.uk

If you own a UK company the Freedom of Information Act will affect you to some degree.  Every company is regulated, taxed or licensed by public authorities and many have public sector contracts.  

Under the FOIA, unless the information they hold on you is legally exempt, it could be open to the public and your competitors.

And some companies carrying out public functions will eventually be covered by the Act, so will have to open their files to anyone who asks.

Public sector contracts

Your company is most likely to be affected by the FOIA if it has contracts to supply goods and services to government bodies. In the United States, which has had a freedom of information act since the 1960s, the majority of information requests are from the private companies seeking commercial intelligence on government contracts and their competitors. 

The UK freedom of information legislation can be used to similar advantage.   The useful information available under the Act should include:

• Background information that shapes procurement decisions and influences the regulatory climate, for example, working party and consultants’ reports.
• Clients’ evaluation criteria, which show exactly how previous bids have been evaluated and contract decisions reached.
• Details of previous bids by rivals, such as pricing, personnel levels and competency. 
• Contract compliance and performance data, which reveal how rival contractors have performed.

Anonymity

If you apply to a public authority for information under the FOIA you’re not obliged to explain why you want it and they’re not allowed to ask.  However, you may not want the authority to know of your interest. This is especially so if you’re seeking information about commercial rivals, whom the authority may feel obliged to consult before releasing the information.  If that’s the case, Freedom of Information Ltd can get the information for you, ensuring your interest remains confidential.

Informal transactions

Not all transactions between the public and private sectors are subject to contracts.  Information relating to some of these more informal dealings will generally be less restricted.  So, you should be able to access information on subjects such as industry lobbying of government departments and hospitality provided by private contractors for politicians and officials.

Public authority designation

The FOIA gives the Lord Chancellor powers to designate as ‘public authorities’ any private bodies or individuals carrying out public functions.   A government working party is currently considering exactly which entities should be designated, but potentially they could include everything from private regulatory bodies, such as The Law Society and the Press Complaints Commission, to privatised utilities and companies involved in Private Finance Initiative projects.  Once designated, those companies will have to disclose information to the public and commercial rivals in the same way as the authorities currently covered by the Act.

Companies holding environmental information, such as the privatised utility companies, are already subject to the existing Environmental Information Regulations (EIRs) So, the new, strengthened EIRs will have a more immediate effect on them than the FOIA. 

Will companies be consulted about the release of their information?

There is no absolute requirement on public authorities to inform you if they’re considering releasing information about your company.  If the information is in no way sensitive it can be released without consultation.  If there is a question mark over its sensitivity the Lord Chancellor’s Code of Practice requires the authority to consult you.  By doing so, the authority may be able to determine whether it’s in the public interest to disclose the material.   However, the decision lies with the authority not the company.

Can companies challenge disclosure of information?

Anyone whose request for information has been refused on the grounds of commercial confidentiality can appeal to the Information Commissioner and, if he sides with the authority, the Information Tribunal.  Companies have no such right of appeal against the release on information relating to them.  Their only recourse to prevent disclosure is a high court injunction. 

Commercial confidentiality vs the public interest

Not all the data submitted by your company to public authorities has to be disclosed.  The FOIA has exemptions for trade secrets and any other information that could prejudice the company’s commercial interests.  Trade secrets will include such information as the formulation of a newly patented drugs and details of a bespoke computer programmes.   Prejudicial information is likely to include details of current bids for public sector contracts.  Details of such bids are likely to be disclosed once contracts have been awarded.

In many cases the prejudice to business interests will have to be weighed against the public interest in disclosing information.  So, a company may argue against the disclosure of details of public sector contracts on the grounds that it would damage its business, but the Information Commissioner, or the courts, may decide it’s in the public interest for taxpayers to know how their money is being spent. 

Companies routinely designate all information ‘confidential’ and insert confidentiality clauses in contracts to prevent their disclosure, but such provisions will no longer be sufficient. The Lord Chancellor’s Code of Practice makes it clear that public authorities ‘should reject such clauses wherever possible.’   And the Information Commissioner may order confidential contracts to be disclosed if he considers there to be an overriding public interest.  

The US experience shows that companies with experience of the FOIA tend to take great care with the information they submit to official bodies, ensuring that truly sensitive information is protected from disclosure.