The Freedom of Information (FOI) Act
FOI and commercially sensitive information
The Freedom of Information (FOI) Act mainly affects public sector organisations. However, it can also affect private companies dealing with public authorities.
If you are a public sector contractor, or you provide goods and services to public bodies, your business' sensitive information may be subject to an FOI request.
Under the FOI Act, information that may affect a business' commercial interests may be exempt from disclosure.
What are commercial interests?
A commercial interest is anything that affects your business' ability to work competitively.
When deciding if releasing information would prejudice, or have the potential to prejudice, someone's commercial interests, the public authority should apply the test of prejudice.
To determine if disclosure would cause prejudice to commercial interests:
- you must be able to identify a negative consequence of the disclosure
- this negative consequence must be significant
- you must be able to show how the disclosure would cause the negative consequence
- there must be at least a real possibility of the negative consequences happening, even if you can't say it is more likely than not
To decide if they should disclose commercial information, a public authority will often need to exercise its judgement. It can seek the views of the business concerned, although it still makes the final decision.
Trade secrets and the FOI
If certain information falls under the category of trade secrets, it could also be exempt from disclosure under the FOI Act.
The FOI Act doesn't define the term 'trade secret'. The term can cover, for example:
- technical information - such as an invention, a manufacturing process, a recipe, design drawings, etc
- business information - such as supplier lists, costs information, pricing or product development plans, etc
To constitute a trade secret, information should require the highest level of secrecy and not be:
- generally known
- widely disseminated
- simply confidential, but confer a competitive advantage to the owner
For information which is a trade secret, the FOI Act provides an exemption under Section 43.