Many businesses, when they commence a
business relationship or make contact with a public sector body,
are shocked to discover the true impact of the Freedom of
Information Act (FOIA) on their dealings. The FOIA provides that
any recorded information held by a public sector body or other
organisation designated as a public authority under the Act, must
be disclosed to anyone, anywhere, who makes a request in writing,
unless an exemption is found to apply. This can include information
supplied pursuant to a tender, contracts, and other documents
supplied by the business to the public body, or that the public
body otherwise holds about that business.
There are exemptions for information that is
confidential in the strict common law sense, and for information
the disclosure of which would prejudice commercial interests.
However, the latter exemption is subject to a public interest test
and so, the public body must dispassionately weigh up whether the
public interest in disclosing the information outweighs the public
interest in withholding. The public body may consult with the
private sector body when making this decision, but the private
sector body that is the subject of the information has no power
under the FOIA to prevent disclosure. Businesses are already
using the FOIA to obtain information about their competitors, and
information about public bodies that they wish to do business with,
by using the access rights under the FOIA.
We can advise on strategies to minimise the
risk that damaging information is released under the FOIA, such as
building clauses into contract that require the public body to
consult with your business, and clearly marking sensitive
information. We can also advise on how to frame requests to
maximise the likelihood that meaningful information can be
obtained.
