The Freedom of Information Act gives the public a 'right to know' unless there are good reasons why this right should be withdrawn.
It does not alter an authority's obligations to protect personal data under the Data Protection Act.
Read about our data protection and freedom of information policies.
Exemptions and the public interest test
There are some exemptions to disclosure set out in the act which enable us to refuse to give the information requested, such as trade secrets.
Most exemptions however are subject to a public interest test. This requires the council to consider all the relevant factors and to balance the public interest in maintaining the exemption with the public interest in disclosing the information.
Factors encouraging disclosure include:
- furthering the understanding of and participation in the public debate of the issues of the day
- promoting accountability and transparency of decisions taken by public authorities and/or in the spending of public money
- allowing individuals to understand decisions that affect them and assisting them to challenge those decision
- items that affect public safety
Factors discouraging disclosure include:
- inhibiting or distorting companies ability or willingness to participate in competition
- undermining true competition for public contracts
Where the public interest in releasing the information is seen as equal to or outweighing that in maintaining the exemption, the council must disclose the information in question.
Information provided in confidence
We will, where necessary, consult third parties before taking a decision to release or withhold information that concerns them. In addition we will endeavour in future to advise those with whom they transact business, such as suppliers and contractors, in advance of the implications of the act. For example:
- that all information they have provided, or will provide, will be subject to the act but where they provide information that they believe would prejudice their interests if released, they identify this and bring it to our attention
- confidentiality can change over time. Something that was not in the public interest to disclose in one circumstance might become disclosable later
Please note that information does not become exempt as confidential just because it is so labelled. Information given to us 'in confidence' may have to be disclosed 'in the public interest'.
Commercial interests
There is an exemption from the right to know if the information requested is a trade secret. The act does not define what a trade secret is, however a useful indication is that courts have previously prevented disclosure by an ex-employee.
Factors affecting whether information is a trade secret:
- is the information used to generate profits?
- does the information give the provider of the information a 'competitive edge' over its rivals?
- has the owner of the information made it clear or is it obvious that the disclosure of the information would cause it harm?
- is the information already widely known?
- how easy would it be for competitors to reproduce the information for themselves?
The concept of 'commercial interest' is, however, wider than 'trade secrets' and might include information that could undermine a supplier's trading position. Once again a public interest is applied.
The test is not whether disclosure of information could merely affect commercial interests, it is whether it would actually prejudice them.
Factors we will consider:
- does the information relate to or could it impact adversely on commercial activity?
- is the commercial activity conducted in a competitive environment?
- whose commercial interests are affected?
- is the information commercially sensitive?
- would there be damage to reputation or business confidence?
- what is the likelihood of prejudice being caused?
Commercial sensitivity will rely on the availability of the information and the timing of the request. For example, prices in a published catalogue cannot be sensitive for some time after a contract is awarded.
The fact that the person making a request is a competitor cannot be taken into account when considering whether to disclose, because 'company' is an 'individual' under the act and cannot be questioned as to why they want the information. They have a right to know, unless there is a clear exemption.
However, there is an overriding public interest in ensuring that companies are able to compete fairly and that there is true competition for public contracts.
Procurement issues
Contract documentation sent out will warn recipients of our duty under the Freedom of Information Act to disclose information.
Conditions of contract must be consistent with our duties under the Act.
We will refuse to include contractual terms that intend to or have the effect of restricting the disclosure of information held by us relating to the contract. A public authority cannot 'contract-out' of its obligations under the act.
Where we wish 'open book' partnership working, our duty to disclose may override the need for confidentiality. Please discuss with us, prior to the contract, what is acceptable to you so ways of mitigating any tensions identified.
Providing us with information
The Freedom of Information Act allows us 20 working days to respond to a request for information. If we receive a request for information about a contract we will contact all relevant suppliers giving them a date to respond to us by.
As a supplier, you must reply by this date.
If you do not then the council will make its decision about disclosure on the basis of the information available to it.
Further guidance
Please email us if you have any questions about freedom of information.
For procurement questions, email Debbie Quincey, the strategic procurement advisor, or telephone 01223 457400.
Further information is available from the Commission for Information for Organisations.
