Member Article

From Land’s End to John O’Groats, roving reporters, tabloid writers and broadsheet columnists, have been riding on the wave of the new freedom of information acts. As a result of the Freedom of Information (Scotland) Act 2002, and its UK counterpart, the Freedom of Information Act 2000, the public now has a statutory right to recorded information held by most public sector bodies. Although the new right only came into force on 1 January 2005, its effect is retrospective. This means that all recorded information, regardless of age, may now be released to the public, unless that information can legitimately fall within one the acts’ exclusions or exemptions. Naturally, journalists have been having a field day! Thanks to the new acts and to fervent journalistic endeavours, we now know the names of those individuals whom Tony Blair has been wining and dining at Chequers. We also now know the extent of Rupert Murdoch’s lobbying in order to win Ministerial assurances that he could bid for Channel 5, and we have been made aware of the tale of a resident Home Office cat, and of the increasing cost if its keep. No doubt the stories will continue. But the acts are not just the concern of earnest journalists looking for their latest scoop – they have a very real relevance for many businesses too. Information given to public bodies, for example, during contractual negotiations, may be released to the public and to a business’s competitors. The possibility of that this information can now be disclosed is now relatively well-know in the business community. Less well known however, is the fact that information relating to tenders, over and above that which is currently required to be released under procurement regulations, may also be released to the public. What information that can be disclosed to the public, and how can such disclosure can be manage? A good steer is given in the Scottish Procurement Directorate's guidance on the interplay between the Freedom of Information (Scotland) Act 2002 and procurement, which was published on 22 December 2004. There are a number of legitimate measures that public bodies and business can, and should, take to ensure that there is a degree of control over the release of information relating tenders and contracts. These measure are succinctly highlighted in the Scottish Procurement Directorate’s guidance At the start of any procurement process, the guidance advises public bodies to inform potential bidders of the implications of the Act: namely, that certain information provided to that public body may have to be disclosed to the public. However, it also provides that public bodies should try and “recognise the bidder’s legitimate commercial concerns”, and that “the conditions of procurement should encourage bidders to identify information that is truly sensitive”. To this end, it advises public bodies to invite the bidder to identify information that may lawfully be withheld under the Act, together with a timeframe detailing how long that information should remain sensitive. This will require the bidder to have a sound understanding of the Act’s exemptions. The most relevant ones are likely to be the commercial interest exemption (which enables information to be withheld if it would, or would be likely to, prejudice substantially the commercial interests of a person, business or public bodies), and the confidentiality exemption (which enables information to be lawfully withheld if its disclosure would result in an actionable breach of confidence). In both instances however, even if the exemption is engaged, the information may still be disclosed if the public interest in disclosing the information is greater than the public interest in withholding it. Once the procurement process has been completed, the guidance advises that the contract should invite the contractor to identify sensitive information, together with a timeframe for that sensitivity. It also recommends that the public body should be contractually bound to consult the contractor if there is a request for information that has been identified as commercially sensitive. Interestingly, the guidance recommends that even if the contractor or bidder has not supplied a list is commercially sensitive information, the public body should consult if a request is made for information which it considers could be categorised as commercially sensitive. In relation to so-called ‘legacy contracts’, i.e. contracts entered into before the Act came into force, the guidance advises public bodies to consult with significant and / or high value contractors to advise of the Act, and to determine procedures for consultation in the event of a request for information. As a rule of thumb, the guidance advises that consultation should be the norm for all legacy contracts in respect of which commercially sensitive information is requested. Business and public bodies should take stock of this guidance, and reflect on the scope of information that could be released to the public and competitors under FOI. It is through the considered application of these measures that the release of potentially damaging information may be prevented. The old adage that ‘forewarned is forearmed’ seems very apt indeed!

 

Footnotes: Catherine Tracey is a solicitor specialising in public law with commercial law firm Shepherd+ Wedderburn 44 (0)131 473 5474