What is the Freedom of Information Act 2000 (FOIA)?
The FOIA is 'An Act to make provision for the disclosure of information held by public authorities or by persons providing services for them'. The Act provides that anyone can ask the council for any information and, unless an exemption applies, the information must be supplied. It is fully retrospective.
For more guidance on procedures for consultation with third parties when responding to requests, the impact of the Act on public sector contracts and accepting information in confidence from third parties see the Code of Practice on discharge of Public Authority Functions at the Department of Constitutional Affair's website.
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How does this impact on companies?
It means that all information which your company has provided and may provide in the future to the council will be subject to the FOIA. This includes information submitted in relation to contract, development proposals and information held for licensing and regulatory purposes.
Only public authorities themselves are required to respond to requests, so no one can apply to you direct. They will make their request to the council; we are then obliged to respond according to the FOIA.
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What will the council do if it receives a request for information held on your contract/company?
If we receive a request which involves information provided by your company and it's unclear whether any claim to confidentiality applies then we will consult with you. However, we have a very limited time to decide whether or not the information can be released so we need up-to-date contact details for someone who can respond quickly to a request. Otherwise we may have to make a decision without your organisation's input as the council is required to respond to requests within a 20 working day time limit.
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What if you are providing the council with information which is confidential or commercially sensitive?
Whenever your company provides information to the council which you believe would prejudice your interest if released under the FOIA you should make th council aware of this at the time it is provided. All our contract documents include a schedule where you can specify this information. However, you should appreciate that simply marking information as'confidential' or 'commercial in confidene' only has the effect of identifying that an exemption could apply under the FOIA. The issue will be not the marking but whether, at the time the request is received, a duty of confidence applies, or whether release would be likely to prejudice your commercial interests.
If you wish to propose a confidentiality agreement or that a duty of confidence should apply to particular information, you should do so in compliance with the Code of Practice issued by the Department of Constitutional Affairs. This will ensure that claims are based on reasons that address the requirements of the Act. The Code can be accessed online.
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What are the exemptions which might apply to information supplied by contractors?
There is no blanket exemption for commercial confidentiality. Each request will have to be examined on its own merits and the Act applied. The following exemptions are likely to be relevant when the council has to decide whether to disclose information under FOIA about contractors' and partners' relationships with the council, details of contractors, tendering information etc.
Section 40 protects personal information, though a public interest test can apply to third party information in some circumstances.
Section 41 provides an absolute exemption where disclosure of the information will constitute an actionable breach of confidence.
Section 44 provides an absolute exemption where disclosure (otherwise than under this Act) by the public authority holding the information is prohibited by, or under any other enactment or it is incompatible with any community obligation.
This may apply to some information received during the procurement process conducted under EU Procurement Rules. It may also apply to confidential information identified in various contract regulations (the Public Works Contract Regulations 1991, the Public Services Contract Regulations 1993, and the Public Supply Contract Regulations 1995).
Section 43 allows information to be withheld where it constitutes a trade secret or where disclosure is likely to prejudice the commercial interests of any person (including the public authority). This is a qualified exemption subject to the public interest test.
The Information Commissioner's office is in the process of issuing guidance on interpretation of these exemptions.
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