The Freedom of Information Act: how could it impact your business?

What is it?

It’s the legislation that caused Tony Blair to refer to himself as an ‘irresponsible nincompoop’, whilst David Cameron has said it ‘furs up’ the arteries of Government, but what is the Freedom of Information Act, and how does it affect your business?

For some, FOI levels the playing field of public knowledge:  anyone can make a FOI request to a public body to request that certain information is released to them.  While requests will not always be granted because, for example, certain exemptions may apply which prevent disclosure – often, the public body will be obliged to release the information.

Why is it relevant to me?

Most businesses will, at some stage, deal with public or regulatory bodies, whether that’s in the course of a licence application, tender, or because their business is in a regulated industry.  Those businesses must be aware of the Act and should be prepared for when a situation arises where information they have disclosed, apparently in confidence, is the subject of a request.

Alternatively, you may be considering making a request in order to review the information held by a particular body which is relevant to your business or industry.

At Capital Law, we can help you understand the legislation and navigate any pitfalls. Our experienced lawyers are able to help with wording, and prescribe to a ‘prevention is better than cure method’, avoiding any issues before they can arise.

How does it work?

The starting point for bodies caught by the Act is that, when a FOI-compliant request is made, the information requested is liable to be disclosed.  However, there are certain exemptions which apply:

  • Absolute exemptions: this means that the information which attracts such an exemption can be withheld without any further justification by the body to which the request is made. Examples of this include ‘confidential information’ and ‘personal data’. However, it is important to remember that these exemptions may not be as straightforward as they may seem, and require analysis as to what might constitute a ‘legal breach of confidence’.
  • Qualified exemptions: this occurs in the event that, even if the information falls within the exemption, the public body needs to consider the ‘public interest’ test to decide whether the information ought to be disclosed, i.e. does the public interest favour disclosure or non-disclosure? ‘Commercially sensitive information’ and ‘trade secrets’ are included in this. “Commercially sensitive information” might, roughly defined, include financial and costing information which, if it found itself into the public domain or the hands of your competitors would put you at a serious commercial disadvantage. “Trade secrets” has no specific legal definition and is quite a technical point to argue.

 Can I find out who has requested the information?

The process is applicant and motive blind. You can ask, in the form of your own FOIA request, although this will generally be personal information in itself. Combining this with the purpose of FOIA means, generally, you will not find out who has made the request.

Practical tips

You may be contacted by a public body or regulator who has had a request made to them to confirm if the information you have provided to it might fall within the relevant request.  Such bodies are obliged at law to do this, but it is recommended in relevant guidance.

When you provide information to public bodies, think about how and on what basis you’re delivering up the information.  There will usually be a tick box for you to indicate why you think such information should not be disclosed if requested. Ensure that this is completed accurately and thoroughly.

Don’t indiscriminately mark or label all information you provide to public bodies as “confidential” or “sensitive” – unless, of course, it is.  Think carefully about what information genuinely falls within these categories and make the basis on which you are providing such information clear.

If you’re contacted after a request is made, you may want to think about what exemptions the public body should consider in deciding whether the information should be withheld.  Bear in mind that you may need to act quickly as tight time limits apply in FOI.

If information is disclosed to the requestor it may also end up on the public body’s “publication scheme” online.  In this event, you may want to monitor where the information is picked up (e.g. in the media) and take reputation management or PR steps accordingly.

How can Capital Law help?

At Capital, our expertise, combined with experience dealing with the Act, ensures that we can advise your business in how to navigate legislation that, often, companies are not entirely clear on.  Our expertise includes:

  • reviewing information given to public bodies
  • advising on the key legal principles of the Act
  • advising on exemptions
  • advising on the interplay between the Act and other information legislation.

For more information, please contact Nicola Mead-Batten.