Select Committee on Public Administration Memoranda


ANNEX B

SUMMARY OF THE COMMERCIAL CONFIDENTIALITY PAPER

RECOMMENDATION 1

  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.

RECOMMENDATION 2

  Every attempt should be made to ensure EU law does not inhibit the Act's effectiveness.

RECOMMENDATION 3

  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.

RECOMMENDATION 4

  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.

RECOMMENDATION 5

  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.

RECOMMENDATION 6

  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.

RECOMMENDATION 7

  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 protected—see Recommendation 21).

RECOMMENDATION 8

  "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.

RECOMMENDATION 9

  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.

RECOMMENDATION 10

  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.

RECOMMENDATION 11

  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).

RECOMMENDATION 12

  Confidentiality provisions governing prices or charges in contracts with public bodies should not be enforceable.

RECOMMENDATION 13

  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.

RECOMMENDATION 14

  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 and contract.

RECOMMENDATION 15

  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.

RECOMMENDATION 16

  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.

RECOMMENDATION 17

  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.

RECOMMENDATION 18

  Any definition of the public interest should include:

    —  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 functions;

    —  ensuring that the public obtain value for money;

    —  avoidance of fraud and corruption; and

    —  avoidance of waste or misuse of public funds.

RECOMMENDATION 19

  The Act should specify that information necessary for public health or safety should never be withheld because of commercial confidentiality.

RECOMMENDATION 20

  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.

RECOMMENDATION 21

  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.

RECOMMENDATION 22

  The risk that any criticism might turn out to be unfair should not be allowed to limit disclosure.

RECOMMENDATION 23

  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.

RECOMMENDATION 24

  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.

RECOMMENDATION 25

  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.

RECOMMENDATION 26

  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.


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 1999
Prepared 16 August 1999