Knowledge is power

Do you want to find out about a successful competitor’s tender for work from a public body, or why your company’s tender was unsuccessful? The Freedom of Information Act 2000, which came into force in January, means that you can.

The act means that anyone has the right to request information from public bodies and authorities. Information has to be requested in writing to the holder of the information and needs to include the name and address of the requester and description of the information sought. In theory, the information has to be provided within 20 working days of receipt of the request.

However, the act contains many exemptions that can prevent information being disclosed. The two that are most likely to impact on the construction industry are: information that is provided in confidence, and information that would be prejudicial to commercial interests.

If it can be established that information was provided to the public body in confidence, and its disclosure would constitute an actionable breach of confidence, it should not be disclosed. But there remains some doubt as to what would constitute an actionable breach of confidence, as the courts have not provided definitive advice. It is, however, clear that release will be allowed if the public interest in disclosure outweighs the public interest in confidence, so the exemption is not absolute.

Similarly the second potential exemption is not as wide reaching as it may first appear. The exemption includes “trade secrets” but again it is qualified by the public interest test. Arguably, therefore, it is likely that the public interest in disclosure of the information – allowing the public to assess how and on what the public bodies are spending their taxes – would in most circumstances outweigh the tenderer’s commercial interests. With implementation of the act in its infancy, however, it is not yet known whose interests will prevail. It is likely that each case will be considered on its merits, therefore the advice must be to assume that information is likely to be disclosed unless there are very compelling reasons against this.

So what can you do to prevent a competitor from seeing your tender to a public body? The following measures will ensure that you have the best chance of protecting your sensitive information:

The advice must be to assume that information is likely to be disclosed unless there are very compelling reasons not to

• Only provide information necessary for the tender – limit or exclude any sensitive information.
• Separate sensitive information from the bid and make it clear why the information is sensitive.
• Insert contract clauses requiring you to be consulted upon receipt of a request for disclosure and before disclosure is made. This will provide you with an opportunity to decide how you might respond.
• Try to agree with the public body a carefully worded confidentiality, specifying what information is confidential and why, and in what circumstances or after what period of time the information may cease to be confidential. Such a clause may assist in overcoming the public interest test.

It is also worth bearing in mind that as the act has retrospective effect, information created prior to January 2005 can be disclosed. The act makes it an offence deliberately to destroy or alter records once they have been requested.

If your request for information is refused, you must first follow the public body’s complaint procedures. Once these have been exhausted, you can then complain to the Information Commissioner. If the IC upholds the complaint, they can issue an enforcement notice on the public body, failure to comply with which may be treated as a contempt of court. The public body may, however, appeal any such notice to the information tribunal, and the tribunal’s decision can be appealed only on a point of law to the High Court. Somewhat controversially, as it seems at odds with the act’s principle of open government, a government minister has an ultimate veto to prevent disclosure.

The act in theory fulfils its objective of promoting open and transparent decision-making by public bodies through increasing their accountability. Whether in fact this is achieved will ultimately depend on how public bodies interpret and implement the many exemptions contained in the act and the view taken by the IC to any refusals.

Martin Salt is a senior solicitor with at Clarks. Email msalt@clarkslegal.com or visit www.clarkslegal.com