FREEDOM OF INFORMATION - THE END OF COMMERCIAL CONFIDENTIALITY

A recent disclosure by a local authority of confidential commercial information concerning a dispute with its IT supplier has raised questions about the extent to which suppliers to public bodies can keep any commercially sensitive information confidential in the face of the Freedom of Information Act. The disclosure by Bedfordshire County Council to a local newspaper of the Council’s allegations in relation to the alleged poor contractual performance by its IT supplier (Hyder Business Services Group), and its subsequent publication, has given Hyder a great deal of unwelcome publicity.

Why was the council able to disclose this information to the press?

The Council disclosed the details of the dispute and terms of its settlement with Hyder in response to a request from the newspaper under the Freedom of Information Act (“FOIA”). Since the 1st of January 2005, under the FOIA all public authorities are required to disclose details of information that they hold in response to requests from members of the public (including journalists). Information acquired by public authorities before January 2005 is also covered, which means that all information held by public authorities is potentially in the public domain. Information can only been withheld if an authority believes that the information concerned is covered by an exemption under the FOIA. Commercially confidential information is exempt from disclosure under the FOIA unless the public interest in favour of disclosure outweighs the public interest in maintaining confidentiality and public bodies have to weigh this up before making a decision one way or the other.

Could Hyder have prevented the disclosure?

Hyder should have got the Council to agree that it would consult with Hyder with regard to any FOIA request, before actually making any disclosure. This would have enabled Hyder to seek to persuade the Council that the information (or at least parts of it) was exempt from disclosure. If the Council did not agree, Hyder could have sought a court order preventing disclosure on the grounds that it was exempt under the FOIA.

How can you avoid a Hyder type disclosure?

If you have existing contracts with public bodies, or you are currently negotiating with a public body about a contract you may want to consider ways of protecting your confidential information as far as possible, making it clear precisely which information you supply is commercially confidential and requiring that the authority notifies you early on of any FOIA request for disclosure. This may give you a short breathing space to try and minimise the impact of the FOIA, if not avoid its impact altogether.

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