If you’re using FOI to ask questions about public services involving private companies it’s quite common to be refused on the basis of ‘commercial sensitivity‘ or ‘breach of confidence‘.
In fact, I’d suggest anticipating this in your initial request – or at the very least pushing for details when you receive any initial refusal.
Both exemptions are often misused by authorities as a ‘catch-all’ reason to fob off a requestor.
But neither exemption is simple, and both have a public interest test element which the authority is supposed to have thought through. In brief there are two things you can do to help your request:
- Ask for the detailed explanation of their decision and how they weighed public interest against commercial sensitivity
- Ask for the parts of the documents which those arguments don’t cover (a contents page, for example, should not be deemed commercially sensitive)
- Quote decisions and guidance which supports your request.
Here’s more detail on how to make sure you’re not being fobbed off…
Question 1: Are they explaining their decision in detail?
Beyond quoting the exemption the authority should be able to explain in more detail why that exemption outweighs any public interest test.
The exemption on commercial interests is a particularly good example of this: not only does the authority need to justify their decision but it doesn’t have to be applied to the whole document(s).
- Firstly, then, you can ask for them to provide the documentation underlying their decision to apply this exemption: what was the nature of the information and how was it commercially sensitive? Whose interests are prejudiced?
- Secondly, this should identify any information that might not be commercially sensitive. Is the name of the report commercially sensitive? Its authors? Its table of contents?
For information to be witheld under Section 43 [commercial sensitivity], the following MUST be provided:
- Details of the exact FOIA exemption – either 43.1 Trade Secrets or 43.2 Commercial Interests
- Details of who would be prejudiced – see MoJ guidance above, p4.
- A “Public Interest Test” where the arguments for and against release of the information should be discussed (as this is a “qualified” exemption).
- If release of the information could prejudice a third party, they should be consulted with – see FOIA Section 45 Code of Practice Part IV
In addition much information from recent public sector contracts should be made available, especially if they are from after 2005, the start date of the FOIA – see ICO Awareness guidance 5 annexe – public sector contracts
The point about the third party is worth clarifying: sometimes an authority might say ‘This private company says it will prejudice their interests’. But it is not up to the private company to make that decision: they can supply evidence but the authority must ultimately weigh that up and judge it against the public interest test – and they must be able to show that decision making process to you.
Conversely, the authority might say ‘it will prejudice our contractor’s interests’ but have they consulted with that contractor to ask why?
The point about public sector contracts is that contracts drawn up since 2005 are supposed to include provisions for the FOI Act: in other words to require organisations to comply with it.
You can always ask if such a provision was included in the contract with the company, which you can then quote in support of your request. (And yes, all the arguments above can be used in gaining access to that particular part of that contract).
Once you have information about the decisions behind their refusal you can ask for commercially sensitive aspects to be redacted (and redaction costs do not count towards the cost limit) and the rest to be supplied.
Question 2: Is it really breach of confidence or just a contract? Fighting your corner with ICO guidance
Breach of confidence is often lumped in with ‘commercial sensitivity’. But if they are referring to a contract it is worth quoting some of the ICO’s guidance which says that contracts are not confidential information:
“The law of confidence is a common law concept which has been developed by
the courts as individual cases are brought before them. This case law will
continue to evolve and is likely to be applied by the courts in order to determine what is ‘confidential information’ under the Act. For example, one of the criteria to be met under section 41 (information provided in confidence) is that the information must have been obtained from another person.
“The Information Tribunal has confirmed that information contained in a contract between a public authority and a third party represents the conclusion of negotiations between the two parties, and as such is jointly created rather than being obtained by the public authority from the contractor. It is therefore not confidential information.“
This is also important because breach of confidence has to be ‘actionable’ – that is the other party could have a legal basis to sue over its release, not merely complain. This is why case law (decisions on previous cases) is important.
However, there is a caveat:
“There can be elements of a contract or agreement, for example technical information set out in a schedule as well as records of pre-contractual negotiations, which the public authority has obtained from the third party and so may qualify as confidential information.”
But this is useful: again you might quote this by way of clarifying that you are happy to accept part of a contract or document, and have elements which are a ‘breach of confidence’ as detailed in the ICO guidance redacted.
Besides this, it’s worth looking at the guidance from the Information Commissioner’s Office (ICO) on the various decisions where the public interest has outweighed that. These include:
- If it would highlight any misconduct, wrongdoing or risks to the public.
- If it would promote freedom of expression.
- If it would promote openness and transparency.
This last element is particularly worth quoting in any initial request, specifically this decision by the ICO:
“The Commissioner recognises that there is an inherent public interest
in public authorities being transparent in the decisions they take in order to
promote accountability. If the background information to the decision making
process is made public, there is a strong argument that this should improve
the quality of future decisions and will ensure public authorities are acting
If you’re going to mention this you can always refer to the decision notice number (ICO Decision Notice FS50093052) as part of your argument for further details, for instance:
“Please note that if you are seeking to use ‘Breach of confidence’ as an exemption the ICO has issued guidance that…”
These are just some things to consider when facing or anticipating an FOI refusal under commercial sensitivity and breach of confidence. If you have any others please do comment.