Trowers & Hamlins

Sign up

Home » Resources » Articles » Damaging information disclosure is better than no information at all

Damaging information disclosure is better than no information at all

Damaging information disclosure is better than no information at all

As government still recovers from the MPs' expenses leak that led to the beginning of a culture change in politics, Paul McDermott looks at the transparency available to the public now and the loopholes employed to keep some things back

Public bodies, particularly local authorities are under increasing public scrutiny about their use and publication of information. The public sagas of lost laptops and stolen computer disks have increased the pressure.

Local authorities often have to deal with conflicting legal requirements concerning their treatment of confidential and sensitive information. The conflict comes to a head where local authorities procure goods, services and infrastructure from the private sector. Those companies whose commercial existence depends upon finely judged pricing, quality of service and other commercially sensitive information are understandably anxious to ensure that commercial information is not publicly accessible.

The Freedom of Information Act 2000 (FOIA) creates a presumption that local authorities should be transparent and open about both their procedures and information which they hold. In essence, the people are paying for their local authorities and therefore the information those authorities hold should be available to their public paymasters.

The FOIA contains some 23 exemptions where a local authority does not have to automatically disclose information to individuals/private companies. These exemptions are divided into two categories, absolute and qualified exemptions.

An absolute exemption in essence means that the local authority is not required to disclose at all. Personal data, protected by the Data Protection Act 1998 (DPA) would not have to be disclosed where to do so is likely to cause damage or distress to an individual.

Most exemptions to the local authority's duty to disclose information are, however, "qualified exemptions". In essence, the local authority has to consider and decide that the greater public interest lies in withholding the relevant information rather than disclosing it.

In essence the FOIA have swept away "secrecy Britain" creating a legal presumption that authorities will disclose information. As a result local authorities have been inundated with requests for disclosure of information.

In the commercial context, this means that private companies supplying goods/services to local authorities are concerned that their commercially sensitive information is protected. The FOIA has a qualified exemption for non-disclosure of commercially sensitive information. This can be information which has commercial value to either the public authority or the private sector supplier. The difficulty for them both is that the legislation and the rulings of the Information Commissioner has narrowly defined what constitutes commercially confidential.

This is not an academic point for those businesses who work with the public sector. It is not uncommon for private organisations who lose public tenders to make FOIA requests about competitors who won the job, in particular requesting sight of the winning written tender. In any climate, let alone a difficult economic one, commercial bodies will be sensitive about prices and their unique commercial selling points being disclosed to competitors.

It is a real dilemma for local authorities to manage. The public presumption is that pricing may be commercially confidential, it is less clear about client care, service delivery or other factors which may give a private sector company an edge over its competitors.

In PFI contracts, where local authorities are required to comply with HM Treasury contracts, there is a provision to enable the local authority and the private sector company to discuss requests for the public disclosure of commercially sensitive information. In essence this approach recognises the presumption that information should be publicly disclosed, as well as the private sector's genuine commercial reasons for not always wanting all information to be made public. What the Treasury inspired contracts do is enable the private sector to request that the local authority deny a request for access to information and if necessary, that the local authority defends any application to the Information Commissioner for disclosure. In return the private sector accepts that they will pay the cost of this process. They are also required to accept a narrow interpretation of commercially confidential and the local authority's ultimate discretion to decide.

Ultimately, it is not in the public interest for every private company to be aware of the pricing and unique selling points of their competitors. It is likely that competition would diminish.

It would assist the situation if the Treasury approach in PFI contracts was more widely adopted for other types of public sector procurement.

In considering disclosure of information and the damage that this sometimes may cause, we do as a society, need to remember that "secrecy Britain" was unpopular. The recent reaction to disclosure of MPs' allowances is a reminder of the bad secrecy habits which existed prior to the FOIA. It is possible that the occasional mistake in disclosing sensitive information is unfortunate but an inevitable consequence of the transparency which our public institutions are now required to operate in.

Click to view article on www.publicservice.co.uk