On 1 January the Freedom of Information Act 2000 introduced a new statutory right for people to request and obtain recorded information held by public authorities.
Its purpose is to enhance openness in government and other public bodies. It will, however, impose a potentially substantial burden on those responsible for administering freedom of information requests in public authorities.
It is also likely to have a major impact on organisations providing information to public bodies for tenders and contracts. Companies tendering for public sector contracts should consider whether the information they have provided will be disclosed under the Act.
The right to information applies to anyone, whether an individual, partnership, company, etc, and whether or not they are a UK national or resident. There is no need to explain why the information is requested.
The public authorities which have to duty to disclose information are widely defined, and include central and local government, and bodies such as health authorities, governing bodies of schools, the police and many others.
The secretary of state can designate others, including private companies, as public authorities if they exercise public functions or provide public services under contract to a public authority.
There are 23 exemptions which public authorities may use to refuse to provide requested information: many have a “national interest” element to them. Others include: confidentiality; commercial interests; and data protection considerations.
The confidentiality exemption
Information is exempt where disclosing it would constitute an actionable breach of confidence.
To qualify for the exemption the information must have been collected in circumstances where there is an obligation of confidentiality, and must be worthy of protection. So even if a public authority has expressly agreed to accept information in confidence or where the information is marked ‘confidential’, the nature of the information itself must be confidential or it will not be protected by the exemption.
The commercial interests exemption
This prevents disclosure of a “trade secret” and protects against any disclosure that “would, or would be likely to, prejudice the commercial interests of any person”.
It remains to be seen how this will be interpreted by public authorities and what will constitute a sufficient degree of “prejudice” to afford protection.
In either case the public authority must consider the public interest in disclosing or withholding the information, and decide whether the public interest in applying the exemption would outweigh the public interest in making the disclosure.
The data protection exemption
This is an important exemption for businesses that may have disclosed personal data (such as staff details) to public authorities, and for public authorities if they are asked for information which may contain personal data – including information about their own staff.
It is a complicated exemption, as is the relationship between the Act and the Data Protection Act 1998.
An individual’s request to a public authority for his or her own personal data is exempt from disclosure under the Act because these requests should continue to made as “subject access” requests under the Data Protection Act.
However, requests for personal data relating to a third party will be dealt with under the Freedom of Information Act.
The public authority will not be required to disclose information if the disclosure would be a breach of any of the data protection principles, the most likely of which would be that personal data must be processed fairly and lawfully.
The issue of fairness may not be straightforward and will require public authorities to make a judgement, looking at how the information was collected, whether the individual was aware that the information might be disclosed, whether he or she had already refused consent to disclosure, and so on.
When considering fairness, the position currently taken by the Information Commissioner is that information relating to a person’s work or official capacity is much less likely to warrant protection than information relating to their home or family life.
The guidance specifically states that the exemption should not be used to spare officials embarrassment about poor decisions.
Implications for business
Businesses need to manage the information that they make available to public authorities and consider what can be done to protect any sensitive information from disclosure under the Freedom of Information Act.
On a practical level, businesses should consider:
Existing information: what information is already held by public authorities?
Future information: what information needs to be divulged to public authorities?
Exemptions: develop policies on the application of the exemptions.
Consultation: representative organisations and individual contractors need to raise and discuss the position of information provided to public authorities with them, to ensure that arguments about how exemptions apply are considered.
Seek information about themselves to find out what will be disclosed.