Tag Archives: public interest

FOIA Without the Lawyer – review and highlights

FOIA Without the Lawyer

I’ve been meaning to review FOIA Without the Lawyer for almost a year now. A natural companion to Heather Brooke’s introductory Your Right To Know, this takes the challenges that come after the FOI is submitted: the niggling exemptions and excuses used by public bodies to avoid supplying information requested under the Act.

In the process it details numerous ways of anticipating and responding to them, including various references to official guidance, tips from FOI officers, and experiences of journalists and others using FOI, all of which are hugely helpful. I’ve tried to summarise some of them here: Continue reading

Making FOI requests: pre-empting the ‘commercial interest’ excuse

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.

Changes to FOI legislation will prevent disclosure of royal documents

Changes are being made to Freedom of Information legislation with the aim of increasing transparency. The 30-year-rule is to be reduced to 20 years and the number of bodies which must obey the law is to increase. But in other areas privacy is to be strengthened. Changes to the Constitutional Reform Act will mean that communication between the Queen, Prince Charles, Prince William and the Government is an absolute exemption and will be protected from public scrutiny. Public interest will no longer be a valid argument for obtaining these documents.

With the changes taking place from today, here’s a look back at some of the top Queen-related stories to come from FOIs.

March 2005: Information was released about the amount of subsidies going to some of Britain’s richest landowners, including the Queen and Prince Charles. It was announced that this would be made available after the Guardian submitted a Freedom of Information request on the topic. The Government rejected calls from farm groups for it to remain private, on the basis that it was in the public interest. The case was described by the Guardian as “The most radical move to be taken by ministers since the Freedom of Information Act came into force on January 1”.

March 2010: Journalists from the Independent made a Freedom of Information request into the correspondence between the Buckingham Palace and the Government revealed the Queen’s financial crisis. Details included that the Queen had asked the Government for more money for palace upkeep and that minor royals were being allowed to live rent-free.

August 2009: A Freedom of Information request was declined by Norfolk Police. It was submitted by Daily Mail journalists and asked for details of the gifts made to police officers who guard the Queen’s Sandringham estate. They refused to provide the information on the basis that it might “provide anyone intent on committing acts of terrorism with vital intelligence as to the level of police resistance that they may encounter”.

September 2010: The Daily Mail reported on how the Queen’s royal officials had spent a £15m grant from the Department for Culture. The article was based on a Freedom of Information request which revealed a spend of £96,000 on cleaning chandeliers and £14,000 on a curtain to protect wine bottles in the Buckingham Palace cellar. A Buckingham Palace spokesman defended the move by saying: “To an average person who has an average house, it seems a lot. But this is our Head of State in her headquarters and a high standard has to be maintained. People are not profligate with the spending.”

September 2010: Documents disclosed following a Freedom of Information request revealed that the Queen had asked ministers for money from a poverty intended for low-income families to pay for palace heating. This is despite already receiving £38m a year from the tax payer and her request was rejected to avoid bad press.