Whilst Tony Blair, the Prime Minister responsible for the Freedom of Information Act 2000 (FOIA) has described the legislation as one of the biggest mistakes of his career, the current UK government’s proposals, to be implemented via the Protection of Freedoms Bill, extend the Act to cover a wide range of bodies which have previously fallen outside the traditional scope of a public body. FOIA currently applies to entities which are wholly owned by the Crown or a single public authority (or their wholly owned subsidiaries), and makes information held by those entities disclosable to the public on request. The proposals will extend FOIA to cover entities wholly owned by more than one public authority, and further secondary legislation will pull into scope a range of additional bodies (including private companies) which perform public functions.
Even prior to this expansion, FOIA has been a concern for the private sector, because it applies to information submitted by private companies to public bodies (for example, tender documents submitted during bidding for government contracts under public procurement rules) or public authority information held by private entities on behalf of public bodies; any of which may have to be disclosed by the public body on receipt of an information request under FOIA, subject to certain exceptions.
These exceptions (which will not be amended by the Bill) play a critical role for the private sector in protecting its more sensitive information against public disclosure. Key carve-outs include exceptions for confidential and commercially sensitive information, which is not required to be disclosed following a FOIA request for information. As a note of caution, however, this commercially sensitive information carve-out (which applies “if the release of the information would or would be likely to prejudice the commercial interests of any person”) is subject to a ‘public interest’ test, which would prevent reliance on this exception if the public interest was determined to be in favour of disclosing the information – the issue here being that this public interest judgement is solely in the hands of the public body.
Private entities should be cautious whilst providing information to public bodies or when holding information on their behalf. For example, bidders in government procurement should:
- Review materials thoroughly in the initial stages of the process, to confirm whether all information should be disclosed
- Consider the timing of any disclosures (as other bidders could submit an FOIA request at any time)
- Mark all relevant disclosed information as confidential and commercially sensitive
- Ensure non-disclosure agreements (NDAs) are in place
- Require the return or destruction of all materials once the process has concluded
- In the contract itself, ensure that a right to be consulted is included (and if you are a subcontractor, ensure an obligation on the prime contractor to identify your information is included), and check that robust (and not overly broad NDAs) are included too.
Once the amendments proposed in the Bill come into force, these issues will come into play for a wider circle of private bodies, who may find themselves within the scope of FOIA by virtue of the fact they are performing services for a public body (rather than simply submitting information to, or holding information on behalf of, a public body), or even that they themselves are now classified as a public body under FOIA (as experienced by the Advertising Standards Authority, the British Standards Institute and The Panel on Takeovers and Mergers, amongst others), and are therefore having to consider which of the various information they currently hold may now no longer by internal and private, but disclosable to the public.
Other changes proposed by the Bill are aimed at ensuring public bodies release information in such a way that businesses can easily use that information for commercial purposes (for example, large sets of data or sections of datasets must be provided in electronic form, capable of re-use). In light of this expansionist view from the Government, and the public’s ever increasing demand for information rights, it is not difficult to imagine further expansion of FOIA being proposed to pull an even greater range of the private sector into scope, particularly in light of the continuous blurring of the divisions between the public and private sectors.