Quite often Freedom of Information requests are refused on the grounds of ‘commercial interest’ – or specifically that “the commercial interests of a third party will, or are likely to, be prejudiced”. This might also be referred to as being refused “under Section 43 of the Freedom of Information Act”.
Note that this is separate – although similar to – “commercial confidentiality” which applies to information that has been provided to the public body by another company.
Sometimes the use of Section 43 will be justified. Where it is not, however, is when the public interest in disclosure overrides those commercial interests. And this is where it is useful to be proactive in your FOI request.
The Information Commissioner’s Office is very useful in explaining how public bodies must deal with your FOI request, and provides guidance on each of the exemptions.
If you expect that your request may be refused on the grounds of commercial interest, it’s worth addressing these up front as part of your request, after you have outlined the information that you require.
How to phrase your FOI request to address possible commercial interest objections
Typical phrasing might go as follows:
“Please note that Section 43 of the Freedom of Information Act states that any attempt to withhold information on the basis that it would prejudice commercial interests can be overruled if there is a public interest in releasing that information”
You can then further strengthen your request by specifying how the release of this information does indeed overrule commercial interests on the basis that it will do one or more of the following, which are specifically outlined in guidance by the Information Commissioner’s Office (PDF):
- further the understanding of, and participation in the debate of issues of the day;
- facilitate the accountability and transparency of public authorities for decisions taken by them;
- facilitate accountability and transparency in the spending of public money;
- allow individuals to understand decisions made by public authorities affecting their lives and, in some cases, assist individuals in challenging those decisions;
- bring to light information affecting public safety
Typical phrasing, then, might go something like this:
“This information clearly qualifies as being within the public interest as defined by the Information Commissioner’s Office (Awareness Guidance No.5) on the basis that it “furthers the understanding of, and participation in the debate of issues of the day”; “facilitates the accountability and transparency of public authorities for decisions taken by them”; and “facilitates accountability and transparency in the spending of public money.”
This public interest test will probably also help you focus on what information you should ask for.
Some other notes:
“The price submitted by a contractor is likely to be commercially sensitive during the tendering process, but less likely to be so once the contract has been awarded.”
“Where a company enjoys a monopoly over the provision of the goods or services in question it is less likely that releasing the information will have a prejudicial impact on that company.” (guidance by the Information Commissioner’s Office (PDF))
The public body cannot make any presumptions on the commercial interests of the company, but should ask the company to make its own case if it wants information to be withheld. This cannot be used as an excuse for delaying a response: “Failure to respond by those being consulted does not remove the obligation [for the public body] to respond within [the 20 day] time limit.”
It should also be noted that the public body also does not have to adhere to the wishes of the company. Any case put forward by the company for withholding information is only that: a case. If that case is overruled by the public interest in disclosure, then the public body can still – and should – release the information.