Article - Freedom of Information - Impact on Private Businesses
The Freedom Of Information Act 2000 - It’s Impact On Private Businesses
The achievement of a more accessible and transparent government system has moved another step closer with the Freedom of Information Act coming into force on 1 January 2005. Public authorities will now in many cases be obliged to provide public access to documents and information, which previously could have been withheld from public review and scrutiny.
However, it would seem that it is not only public authorities who need to worry about complying with the Freedom of Information Act. Private businesses may also be indirectly effected by the obligations imposed on government by the Act.
When most people think of public authorities they tend to think of Central Government, Local Authorities or District Councils. However, under the Freedom of Information Act private businesses that are wholly owned by government authorities are defined as public authorities. Indeed, the definition is stretched even further under the Act to include private businesses which contract with government authorities to provide services which those authorities must provide by law.
Such private business are likely to find themselves obliged to deal with requests for documents and information from members of the public. They may also be obliged to assist government authorities with whom they contract in responding to such requests for information. Some comfort may be drawn from the fact that those parts of such businesses which are not related to government authorities may still be kept confidential. Nevertheless, it all adds up to the fact that private information, previously unavailable to the public, will now be disclosable.
As with any piece of legislation, there are exceptions to the general rule. The Act provides exemptions which permit public authorities from refusing to disclose information to the public. Those which are likely to be most relevant to private businesses include an exemption where the information in question relates to “Commercial Interests” and an exemption for “Information Provided in Confidence.”
“Commercial Interests,” of course, include trade secrets, but the scope of this exemption goes wider. Using this exemption information can be withheld from disclosure wherever it “is likely to prejudice the commercial interests of a person.” “Information Provided in Confidence” covers any information the disclosure of which would give rise to an actionable breach of confidence.
It is worth noting that the ultimate decision of whether to disclose information or withhold it under an exemption is that of the relevant public authority. This may lead to private businesses disagreeing with a government authority over whether to disclose information or not. Therefore, good communication between such businesses and government authorities is vital.
Another major consequence of the Act is that confidentiality provisions contained in contracts between government authorities and private businesses will be far less meaningful in future. The reason for this is that public authorities will need to disclose such information to the public on request, unless they can rely on an exemption under the Act.
Accordingly Richard Thomas, the Information Commissioner responsible for enforcing the Act, strongly recommends that all contracts remaining in force past the 1 January 2005 are reviewed. He also recommends that if any confidential information is shared between such parties to an agreement it should be identified by the parties at the time the agreement is negotiated. This way both parties are aware of what the other perceives as “confidential information” and therefore non- disclosable.
Accordingly, in light of the Act private businesses are recommended to:
- carry out a review of all their business relationships (e.g. clients, agents, suppliers);
- review any contracts entered into with government authorities;
- put in place procedures and policies for their staff, clarifying what is required of them in the event that they are asked by government authorities to co-operate in handling a request for information; and
- consider what contracts competitors may have with government authorities for which they would like to bid in the future and request details under the Act.
Marlene Naumann
Solicitor
18 January 2005
