How free is your information?

Citation

Southby, K. (2006), "How free is your information?", Strategic Direction, Vol. 22 No. 7. https://doi.org/10.1108/sd.2006.05622gab.002

How free is your information?

How free is your information?

The Freedom of Information Act 2000 is broad and far reaching in scope and operates retrospectively, so all information held by a public authority at the time a request is received (including information provided to or obtained by the public authority before the act came into force) is caught by the act.

One year on from the much-heralded arrival of the Freedom of Information Act 2000, central government departments have received over 16,000 information requests, and local authorities an estimated 20,000, although some believe this number to be far higher. Something, therefore must be working – but in whose favor?

The act creates new risks for businesses, as openness by public authorities gives rise to the potential for commercially sensitive information to become more easily available to competitors, suppliers, interest groups or customers. Conversely, it opens up the opportunity to dig and delve more deeply into the workings of government regulators and prosecuting authorities. So how does it affect business, and who are the winners and losers?

Freedom of information – not my problem?

It might not appear at first that there is too much sensitive business information held by public authorities, but consider the records kept by the Health and Safety Executive, Trading Standards, Environmental Health, the contracts department of a local authority to which a business has submitted a tender document. What business would feel comfortable with their competitor having unhindered access to that information? The previous probings of national newspapers into the Health and Safety and Trading Standards records of the major supermarket chains highlights the use that could be made of Freedom of Information Act requests as fuel for sensationalist reporting and the commercial damage that can result.

Loss of confidentiality – stemming the tide

Under the act, information held by a public authority will be protected if a duty of confidentiality applies. However, whether or not the public authority may disclose commercially sensitive information, or trade secrets will depend upon the balance of public interest test, which disconcertingly is applied by the public authority itself.

In order to maximize the chances of a claim for exemption from disclosure succeeding, both the company submitting the information and the authority who receives it should take whatever steps they can to protect it at the time that the information is submitted. In reality this means devising and implementing an information management system for those businesses who are concerned about the sensitive information which they provide to public authorities.

Of course, whilst in the case of contractors the information which an authority obtains is provided to it voluntarily, and can therefore be, to at least some extent managed – in the case of regulators, they obtain and hold, as a consequence of their routine inspections, a great deal of information concerning companies and past and ongoing investigations and transgressions which could be extremely “commercially sensitive”.

In such circumstances the regulator is not obliged under the act to refer or seek consent from the company about whom the information request has been made, however the access code issued by the Secretary of State gives guidance indicating that there should be consultation with persons to whom the information requested relates or persons whose interests are likely to be affected by the disclosure of information.

The good news for the time being at least is that the act does not bite where information is protected by confidentiality provisions contained in other legislation. For example, the Health and Safety at Work Act 1974 provides broadly that information that has to be provided by companies to the HSE may not be disclosed without the company’s consent. However, this restriction is under review and may well be removed in the future.

Even were such a restriction to be removed it ought still to be possible to argue that an authority should resist the disclosure by claiming a qualified exemption, since by its very nature, the information concerning your business which a prosecuting authority holds or creates is collected in order to analyze compliance with, or contravention of the criminal law.

Finally it could also be suggested that the release of any such information would fail to meet the public interest test under the freedom of information act guidance, since they may concern issues that are being actively resolved in partnership between the company and the HSE. Any such release seems likely to only hinder future open working and partnership between companies and their home authority, which must be in conflict with the intentions of the act.

The silver lining to the cloud?

Of course for every unwanted information request by a competitor, there is also a potential fishing expedition into the bowels of the regulator’s internal documentation for those who are faced with a prosecution or what seems to them to be an oppressive investigation. Examples of documentation which are now accessible includes internal briefing notes on enforcement policy and guidance notes, which may shed light on whether or not a prosecution is properly brought, or could instead be vulnerable to attack as an abuse of process. The 2,100 appeals from refusals to information requests suggest that obtaining information is not always as straightforward as one might wish, but it is another tool in the commercial armory should a business be faced with an oppressive regulator.

Set out below is a summary of the obligations on public authorities under the act.

Authorities must:

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  respond within 20 working days at the latest;

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  give detailed reasons for any refusal to release information;

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  provide you with advice and assistance;

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  not charge you more for the information that the limits set out at law; and

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  comply with the codes of practice on access.

You have a right to an appeal to the information commissioner if your request is refused.

Katherine SouthbyLitigation specialist at Yorkshire law firm Gordons.