Most public sector organisations are subject to obligations under the Freedom of Information Act 2000 (‘FOIA’); private sector organisations generally fall outside the direct scope of FOIA. However, for organisations which work with the public sector, FOIA can nevertheless be a key factor in business such that your data is held by bodies to FOIA applies to. You may tender for public sector work or are appointed by the public sector as a supplier – either way, you may end up having to think about how your private information is liable to disclosure and how to protect it given the FOIA regime.
In this article, we sketch out some of the issues and opportunities FOIA can represent for private sector organisations.
Scope of FOIA
Contracting parties should be aware of whether bodies they are contracting with are subject to FOIA.
FOIA applies to ‘public bodies’ as defined in the act at s.3 or schedule 1. Generally, this includes NHS Trusts, local authorities, government organisations, regulators, or schools and universities which receive government funding under certain educational legislation. FOIA also applies to organisations wholly owned by the public sector, such as local authority or university subsidiaries. FOIA can therefore stretch further than it appears.
As a further note, housing associations are not automatically subject to FOIA; however a recent piece of legislation will subject them to a comparable regime. If you have further queries on this, please contact us.
Information shared with public bodies
Any information shared with a public body can potentially be pulled into the public arena by a request under FOIA – for example a private supplier’s key pricing information shared as part of entering into a commercial agreement.
Defending against FOIA
Where public bodies hold your information, they should, per statutory guidance, consult with you before disclosing it. If that information is confidential or sensitive, you may need to lay out why this is the case clearly for the public body, so they can be satisfied withholding the information is a defensible position. Sometimes its best to do this in the very document in which you share the relevant information eg: tender bid. One of the most common issues we find where companies are trying to object to disclosure under FOIA is failing to sufficiently detail those concerns.
One of the most common exemptions to consider is s.43 FOIA, which permits a public body to withhold commercially sensitive information, where disclosure of that information would or would be likely to prejudice a party’s commercial interests, and where the public interest in withholding that information is greater than or otherwise overrides the public interest in disclosure.
However, the public body (and by extension you) will need to identify the precise harm that would or would be likely to arise from disclosure – for example ‘disclosing our particularised pricing calculations would allow a competitor to unravel how we approach bids, and allow them to undercut us on a specific upcoming opportunity’ rather than simply ‘our rates are commercially sensitive’. The more clearly and in line with FOIA you can articulate your concerns, the more likely it is that the public body will both be able to and want to withhold the information in reliance on your arguments.
Note that the public body will always want to retain absolute discretion over what information it chooses to disclose and may well have included such terms in their supplier contracts – however individual contracts can place more or less onus on the public body to discuss disclosure with contracting parties.
FOIA can also represent an opportunity for organisations looking to work with the wider public sector, for example requesting information in order to challenge a failed procurement bid.
Properly phrasing a request can be the difference between receiving an anodyne refusal and key financial information to support the challenge; a request for exact figures, such as ‘how many requests for services under X procurement award have been completed on time?’ may be refused. However, ‘what percentage of requests for services under X procurement award have been completed on time?’ would be harder to resist, and would still provide key information. A key consideration when asking for financial or other types of commercially sensitive information is how old it is – if your request relates to sometime ago, you are more likely to be able to obtain it.
Careful wording, and an understanding of key case law decisions, are therefore essential to appropriately handling requests for valuable information.
FOIA can represent both a threat and an opportunity for bodies working with the public sector. Understanding how the Act works will be key to defending and pursuing your interests.
Melanie Carter, the firm’s Head of Information Law and Privacy, will lead a webinar covering the Freedom of Information Act (FOIA) and the ICO’s recent uptick in enforcement action.
The webinar will be held on 7 February 2024, 10:00 – 11:00 am. This will cover:
- a reminder of core FOIA obligations, including what can happen when those obligations are not met
- a discussion of the ICO’s recent enforcement activities and regulatory position regarding FOIA
- observations on key mistakes and common errors public bodies can make in handling FOIA requests
If you're interested in attending, please register for this event here: Freedom of Information – Backlogs and Compliance.