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The FOIA is a fantastic tool for business, especially if your company is seeking public sector contracts. In the United States, which has had a FoI act since the 1960s, companies routinely use it in this way and majority of information requests are from the commercial sector.
The amount of information you can get will often depend on your skill in using the legislation – which is where we come in. And, of course, similar information about your company’s contracts is available to your rivals. 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, especially if you’re trying to win their business. If that’s the case, Freedom of Information Ltd can get the information for you, ensuring your interest remains confidential. Are companies 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 interests vs the public interest Not all commercial information has to be disclosed. The FOIA has exemptions for confidential data, 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. 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 previously tended to designate all information and insert confidentiality clauses in contracts to prevent their disclosure, but such provisions are 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. |
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