Freedom reined in
17/02/2011
By Chris Whittington, Partner and Head of Construction & Engineering.
A recent Court of Appeal judgment has provided some relief to companies contracting with public bodies on disclosure of commercially sensitive information.
Under the Freedom of Information Act (‘FoIA’), government bodies such as local authorities must disclose all contract details if requested, except when it is genuinely confidential. If contractors are tendering on a competitive basis, this can give a significant edge to rivals next time round.
The Environmental Information Regulations (‘EIR’) operate similarly with regard to waste-processing and other environmental matters.
The public interest in having contract details disclosed has often outweighed commercial confidentiality in decisions on FoIA or EIR applications. However in Veolia vs Nottinghamshire Council, the Court of Appeal dealt with an application under the Audit Commission Act (‘ACA’) by a local protestor regarding the construction of a waste-to-energy plant. It upheld the reasoning of the information commissioner who had dealt with an application under the EIR made by the same individual in relation to the same facility.
On this occasion the information commissioner had felt that public interest in the disclosure of commercially sensitive information (such as profit and cost recovery from selling by-products) was outweighed by the need to keep such matters confidential in appropriate circumstances, which these were deemed to be. The Court, confirming the commissioner’s position, stated that there was a “strong public interest in the maintenance of valuable commercial confidential information” loss of which would be “potentially anti-competitive”. The court further held that there was no disclosure of confidential information required under the Public Procurement Regulations.
These principles are likely to apply to future applications under the FoIA and the EIR as they have to the ACA, which will no doubt come as good news to companies contracting with public authorities.