Freedom of Information Act 2000 | Protection of Commercial Interests
The Freedom of Information Act 2000 (‘the Act’) creates a public ‘right of access’ to information held by ‘Public Authorities’ which obliged to:
- publish certain information about their activities; and
- provide information requested by members of the public.
The definition of ‘Public Authorities’ includes Government Departments, Local Authorities, the NHS, and Police Forces.
The Act outlines the manner of the presentation of a ‘Freedom of Information’ request and the appropriate applicable response which, generally, should involve the disclosure of the requested documentation and /or information.
However, Schedule II, section 43 of the Act outlines exemptions under which the request may be refused in respect of ‘commercial interests’.
Stuart Southall of KANGS comments upon the ‘Commercial Interests’ Exemption within the Act.
The Relevant Law
General Provisions
The Act states:
‘1 General right of access to information held by public authorities.
(1) Any person making a request for information to a public authority is entitled—
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
2 Effect of the exemptions in Part II.
(1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either—
(a) the provision confers absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information, section 1(1)(a) does not apply.
(2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—
(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information
(3) For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption—'
Section (3) then schedules ten provisions of Part II which are to be regarded as conferring absolute exemption. NOTE: Section 43 is not included.
Commercial Interests
The Act continues:
‘Part 11 Exempt information
43 Commercial interests.
(1) Information is exempt information 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)’.
Case Law
Jackley v Information Commissioner (2016), decided that it is not sufficient that there may be prejudice as the result of the disclosure but there must evidence of a real and significant prejudice.
This is the leading case law authority on the application of Section 43(2) of the Freedom of Information Act 2000.
The Judgment set precedent for the extent of potential damage that could be caused both to the subject and the council to justify reliance on section 43(2), above.
The prejudice caused by refusing to comply with a request must outweigh the Public Interest in the documents and/or information.
Some examples of prejudice to the subject and Council’s Commercial Interests, upon disclosure of information include:
- Unfair advantage would be given to opponents in future competitions, tender bids, or when obtaining procurement contracts,
- Disadvantage is given to the subject as their work, philosophies and business methods, are open to duplication.
How Can We Assist?
With the ever- increasing desire of individuals and corporate bodies to exercise their rights to seek disclosure under the Act, the volume of disputes arising from the refusal to make disclosure increases.
Each request presents its own difficulties given the differing nature of each document or piece of information being requested.
The Team at KANGS is experienced in assisting clients seek the disclosure of documents and information of every nature.
Should you require our assistance please do not hesitate to contact one of our Team below.
Enquiries are welcome by telephone on 0333 370 4333 or email at info@kangssolicitors.co.uk.
Alternatively, discussions can be held virtually through live conferencing or telephone.
