SUMMARY OF THE COMMERCIAL CONFIDENTIALITY
The onus should be on the objector to disclosure
to show that substantial harm will result, not on the applicant
for the information to show that harm will not occur.
Every attempt should be made to ensure EU law
does not inhibit the Act's effectiveness.
For the purposes of the Act, the test for confidentiality
should be that disclosure would cause substantial harm, not that
it was communicated to a public body in confidence.
If a body that is liable to make disclosures
under the Act chooses to keep together records relating to both
its public and its commercial operations, those records should
be subject to disclosure under the Act.
A commercial organisation that has chosen to
supply information to a public body should not be entitled to
object to its disclosure if it could not show that the disclosure
would cause the organisation substantial harm, unless disclosure
was against the public interest.
No organisation supplying information to a public
body should be entitled to oppose its disclosure on the ground
of commercial confidentiality, unless when it supplied the information
it officially notified the public body in writing that disclosing
it would cause the organisation substantial harm, how, and what
harm it would cause.
No public body should be allowed to accept any
information on any terms other than it is liable to disclosure
under the Act (although whistleblowers should be protectedsee
"Data which could affect share prices"
is not a category of information that should be specified as confidential
for the purposes of a Freedom of Information Act, let alone protected.
No exemption should prevail if the requested
information would reveal iniquity, fraud or a breach of public
law. In such cases, the greater public interest should always
be in disclosure.
As it will not be possible to define substantial
harm, the Act should make clear what is not substantial harm,
such as revealing to competitors the names and addresses of suppliers
or the terms of successful tenders.
No information about prices or charges made
by or paid by a public body should be treated as a trade secret
or otherwise commercially confidential. (That openness need not,
however, extend to how the decision to make or pay any particular
price or charge was arrived at).
Confidentiality provisions governing prices
or charges in contracts with public bodies should not be enforceable.
The Act should specify that tender documents
for contracts should make clear that all contract prices or charges
will be made publicly available once a tender has been accepted
and the contract finalised.
The Act should specify that tender documents
should make clear that details of unsuccessful tenders will be
made available at the same time as details of the successful tender
The Act should set a time limit on how long
commercially confidential information can be withheld after the
period to which it relates. We suggest two years. Parties should
be free to apply to the Information Commissioner to vary the period.
It should not be necessary to have a separate
reference in the Act to trade secrets, but if one is felt necessary,
trade secrets should be narrowly defined following the US approach
set out in this paper: an "unpatented, secret, commercially
valuable plan, formula, process, or device that is used for the
making, preparing, compounding or processing of trade commodities
and that can be said to be the end product of either innovation
or substantial effort". It should have a value and existence
independent of the business of the trade secret's owner and a
direct relationship with the production process and to have an
existence independent of the business of its owner. Trade secrets,
therefore, should not include pricing and sales volume data, sources
of supply, subcontractors' identities, rebates taken or given,
preferential classes of customers, plans for expansion, tenders
placed or made, and the content of and parties to current negotiations.
Such information may, however, be deemed confidential for other
reasons (ie the substantial harm test). Trade secrets should also
be subject to the substantial harm test.
All existing legislation dealing with commercial
confidentiality and trade secrets should be amended in line with
the Freedom of Information Act. The words "secret manufacturing
process" can and should be dropped.
Any definition of the public interest should
ensuring effective oversight of the
expenditure of public funds;
keeping the public adequately informed
of any danger to public health or safety or to the environment;
ensuring that any public authority
with regulatory responsibilities is adequately discharging its
ensuring that the public obtain value
avoidance of fraud and corruption;
avoidance of waste or misuse of public
The Act should specify that information necessary
for public health or safety should never be withheld because of
The Act should provide guidance on defamation
(injury to the good name or reputation of a person or body), particularly
in what circumstances the discloser is protected from actions
for defamation resulting from the disclosure.
In appropriate cases, suppliers of potentially
defamatory information to public bodies should be able to rely
on a defence of "qualified privilege", on the grounds
that they were acting in the public interest, or that they had
a duty to give the information to the public body, and were not
acting maliciously. The privilege should protect the supplier
against an action for defamation by the subject of the information,
and from having to indemnify the discloser against such an action.
The risk that any criticism might turn out to
be unfair should not be allowed to limit disclosure.
If a public body has reason to suspect that
any of the information it has been given and is asked to disclose
is false or misleading, it should be under a legal obligation
to say so at the time of disclosure, but doubts about accuracy
should never be grounds for refusing to disclose.
A supplier of information that is disclosed
according to the provisions of the Act should have no right to
bring an action for breach of confidence against the public body
that disclosed it.
Where information is disclosed not in accordance
with the Act's provisions or contrary to a decision by the Information
Commissioner or a court, the supplier should have a right of action
for breach of confidence. If, however, the disclosure was made
in the genuine and reasonable belief that the Act required it
to be made, then the disclosing body should be protected.
Suppliers of information to a public body should
not be able to take any proceedings for an injunction (to prevent
disclosure), or any other action for breach of confidence, unless
and until a decision to disclose has been made.