Introduction
The Freedom of Information Act 2000 ("FoIA") came into force on 1 January 2005. It had a broad ambit, granting anyone living anywhere in the world the right to request information held in any form from more than 100,000 public and quasi public bodies. The Act was seen as a fundamental change in the public sector, moving from a culture of withholding information to one of disclosure. Approximately 47,000 FoIA requests were made in the first 6 months of its operation; initially the majority of these were made by the opposition political parties and newspapers, but now the majority of requests are made by businesses dealing or seeking to do business with the public sector. Whilst headlines may be grabbed by use of the FoIA to determine the Ministry of Defence’s position on UFOs or the expenses incurred by various public figures there is a very practical side to the Act that businesses need to be aware of, both in terms of seeking competitive advantage and in preventing disclosure of their information that has been provided to public bodies.
Publication schemes
The FoIA requires each public body to maintain an approved publication scheme and to publish information in accordance with that scheme. The intention is to put as much information in the public domain as is reasonable. In practice this means information can be made publicly available even without a specific request to obtain it having been made. Because there is no set format for these schemes the information released under them varies greatly from one public sector body to another and it is wise, before submitting information to a public body, to review their publication scheme.
Requests for information
Any requests for information under the Act must identify the requesting party and be in writing, but other than these obligations there are almost no formalities for making a request under the FoIA; in particular there is no need to mention (or even intend) that a request be governed by the Act, whether it is applicable or not is a question of fact. The public body must generally respond to requests within 20 working days of receipt. Initially this target was missed by many bodies, but the situation is improving. When responding to a request the public body must typically disclose two related issues: the first is to inform the enquirer whether the authority holds information requested and, if it does hold that information, to communicate it to the applicant. The means of communication will vary according to the nature and quantity of information involved. Typically this may be the provision of copy documents or extracts of them, but may be an abstract of information or even a statement that the information may be inspected at a certain time and place (where, for example, the material is particularly bulky). Public bodies are entitled to make a charge for their costs in responding to a request up to a limit of £600 for central government bodies and £450 for local government bodies. This is to cover materials and manpower in providing the requested information. If costs are reasonably expected to exceed this sum the public body may refuse to meet the request regardless of whether the enquirer is willing to pay the excess. This provision has been used by certain bodies to refuse to answer potentially controversial requests, whilst other entities have, as a matter of practice incurred far more costs than the statutory limit in responding to an information request. Whilst not the intent behind the charging provision, it has become a tool to reject requests that are over complex or, in some cases, controversial in their ambit.
Exemptions
The FoIA operates on a presumption in favour of disclosure. That presumption may be rebutted where one of the 23 exemptions set out in the Act applies and the most commonly encountered are considered below.
There are two types of exemption, absolute and qualified.
a) Absolute exemptions
Where an absolute exemption applies the public body may refuse to disclose information; these exemptions include:
- information supplied by or relating to security bodies (MI5, MI6 etc.);
- information whose disclosure is prohibited by enactment or is incompatible with an EC obligation or where disclosure would constitute contempt of court;
- information provided in confidence and its disclosure would be an actionable breach of confidence (one that would be upheld by the courts);
- information likely to prejudice the conduct of public affairs;
- personal data; and
- information available to the applicant by other means, for example, information available under a body’s publication scheme.
b) Qualified exemptions
A qualified exemption requires the body holding the information to decide whether the public interest in disclosure overrides the public interest in non-disclosure. Qualified exemptions include:
- national security;
- defence, the economy and international and internal UK relations;
- government policy and the conduct of public affairs; and
- trade secrets and information where disclosure would prejudice the commercial interests of any person.
Enforcement
If a request is refused, the authority must identify the exemption it has applied and the factors taken into account. The person seeking the information may appeal the decision or complain about any failure to respond to a request, initially to the body taking the decision and then to the Information Commissioner and the Information Tribunal/High Court if appropriate and necessary.
Practical Issues
The FoIA represents an opportunity to find out about a public body or about those with whom it has dealings such as service suppliers. As such the FoIA is a valuable tool useful both in litigation and in commercial matters. On the other hand, companies providing information to public bodies, such as tender documents, need to consider the consequences of competitors and others seeing that information. The FoIA does not give anyone from affected by information held by a public body any right of consultation as to how a request for information should be handled. However the Department for Constitutional Affairs, which issues guidance on implementation of the Act does recommend as proper practice that an affected party should be consulted where possible. Even so, the decision making is taken by the relevant public body and there is a wide range of positions exhibited by these in responding to information requests. Whenever a private sector entity pitches for work, or provides goods or services to a public authority, information submitted by it to a public body or an entity acting on the body’s behalf is potentially accessible to anyone (including competitors) making a FoIA request. Typically an organisation will claim that information it provides is confidential, or, using the rather unclear distinction adopted in the FoIA, a trade secret and/or commercially sensitive. Because the submitting party does not have input as to whether the public body uses any available exemptions it is wise to consider the practical steps that may be taken to safeguard information. First, it needs to be kept in mind that labelling information as confidential as a matter of course does not make it so. Many companies (and law firms) are guilty of designating swathes of perfectly obvious information as confidential. If a public body is to be persuaded that information is to be treated as confidential or commercially sensitive it will rightly expect a rather more considered effort to identify specific information that should be protected. Typically public bodies will be receptive to companies submitting information that have identified specific elements they would wish not to be disclosed, especially where they have identified the relevant exemption and justified that view; if appropriate an "expiry" date after which information may be disclosed will be well received. A pragmatic and proactive approach such as this will be far better received than designating entire documents as confidential or adopting negative tactics such as providing bare minimum information, providing information at the last minute or demanding the return of documents submitted. Another issue to bear in mind for parties that succeed in tenders is that they will frequently be holding information on behalf of public bodies and may both receive requests under the FoIA and be expected to administer such claims or assist the relevant public body. When negotiating with public bodies this potentially costly exercise needs to be addressed and a clear process agreed, together with, a means for ensuring that the company in question does not end up bearing the cost for the public sector complying with the FoIA request.
The FoIA and you
The FoIA offers opportunities for obtaining commercial intelligence, but there is much scope for a well prepared company working with the public sector to protect against the attendant risks under the Act. We can assist you both in drafting requests and also in protecting your business from the risks the FoIA may bring when working in partnership with the public sector.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
