The Freedom of Information (FOI) Act

How the Freedom of Information Act affects businesses

Guide

If your business deals with public or regulatory bodies (eg through grants, licences or tenders), the Freedom of Information (FOI) Act can affect it in a number of ways.

Does the Freedom of Information Act apply to private companies?

The FOI Act will apply to your private sector business if:

  • the information you share with a public body is subject to an FOI request
  • the information you share is published under the public body's publication scheme

What is a Freedom of Information (FOI) request?

Under the FOI Act, anyone has the right to request any recorded information held by public authorities (eg government departments, local councils, health authorities etc) or by businesses that carry out public functions (eg privatised utility companies).

This right applies to all information held - not just the public body's official documents. It can apply to your business' intellectual property and confidential information, if this type of information is on their record.

If you contract with a public body, any information you share with them may be subject to a Freedom of Information request.

How can FOI disclosure affect your business?

If the public body receives an FOI request and decides they need to disclose information that relates to your business, this may have a significant impact on your commercial or other interests.

A public body will normally take reasonable steps to contact and consult with a third party regarding the release of the information. This is typically known as 'third party consultation'.

Not all information is liable to be disclosed under the law. Certain types of information, for example, financial records or contract details, may be exempt from disclosure.

Exemptions may also apply to requests for third party personal data. Under the General Data Protection Regulation (GDPR):

  • if someone's FOI request relates to another person's personal data, the public body will need to consider the fairness, lawfulness and necessity of disclosing such information
  • if disclosure would not be fair or lawful or would be disproportionate, the information will be exempt

See FOI exemptions: absolute and qualified.

When passing information to regulators and public authorities, it is worth being aware of their Freedom of Information obligations and the possible risks of disclosure. See tips to help you manage the risk of disclosure of confidential information.