HOW THE BUSINESS COMMUNITY IS USING FREEDOM
OF INFORMATION IN OTHER COUNTRIES
This Annex, based on research from the sources
documented below, sets out a brief summary of the nature and extent
of business use of Freedom of Information legislation in other
The US has had a Freedom of Information Act
for more than thirty years and the business community has benefited
substantially from it. Indeed the US administration has actively
encouraged the private sector to exploit public sector information
commercially. American businesses have capitalised on the information
that is available to them to seek competitive advantage, to assess
possibilities for obtaining licences, government contracts etc
and to make sure that agencies are treating them fairly.
The business community is by far the greatest
user of the Freedom of Information Act in the US. NASA, for example,
gets about 3,000 Freedom of Information Act requests a year. About
80 per cent of these are commercial and are concerned with contracts,
proposals, and modifications to contracts and requests for proposals.
Companies use the Act to get information about the business environment
and learn more about the regulatory climate. Routine business
use is made of the Act for marketing purposes, to obtain information
about customers and potential customers. Other examples of business
use of the Freedom of Information Act in the US include the examination
and re-examination of tenders and winning bids. Companies will
ask for information to keep track of technology and to determine
how to bid competitively as well as to learn about agency attitudes
and strategies. Trade publications have used the Freedom of Information
Act to get information about agency actions of interest to subscribers.
The US Freedom of Information Act has also been
used effectively by business to uncover misconduct by federal
agencies. For example ICI used the Freedom of Information Act
to access documents which showed that Small Business Administration
(a government agency) had committed a more serious violation of
its own procedures than its official correspondence admitted.
This led the Administration to terminate an illegal contract.
Without a Freedom of Information Act, the only alternative would
have been to sue the governmentsomething most small businesses
would not have the resources to even contemplate. The businesses
that use the Act range from small, one-person companies to large
multinationals. They include construction companies, real estate
agencies, manufacturing companies, dredging companies, specialist
publications, catering businesses, law firms etc.
Overall the Department of Defence and the Department
of Health and Human Services have been the areas of government
to receive the most number of requests under the Freedom of Information
Act. About 80 per cent of all requests are fully granted. In 1993
there were 375,424 requests made to government agencies using
Freedom of Information legislation.
The equivalent of a Freedom of Information Act
was introduced in Canada in July 1983 giving a right of appeal
to the Federal Court. Business use of the Act is increasing with
nearly half of all requests now coming from the corporate sector.
Specific areas of the business community have particularly appreciated
the benefits of a Freedom of Information Act to access information
about winning bids in government tender activities, and have also
used it to look at meat inspection procedures, aircraft safety
inspection procedures, nuclear power plants safety issues, and
to challenge environmental impact assessments. The health industry
has been a consistent user of the Act, requesting information
on drug licensing and other trade mark and licensing issues. Originally
the Act (the Access to Information Act) was used mainly by the
media, lawyers and academics, however, there has been a marked
uptake in the business community, with more than 5,000 requests
coming from this sector each year. The most active business area
relates to government tenders and contracts.
The Act, which covers central government and
most agencies, gives a very wide right of access to records, even
those which do not exist, but which can be produced from a machine
readable record. It allows access to Federal Government records
including "letters, memos, books, plans, maps, photographs,
films, microfilms, sound recordings, computerised data . . ."
The Act includes a requirement to provide written
notice to any third party about whom confidential business information
is requested. Requests may only be made by Canadian citizens or
Australia introduced a Commonwealth Freedom
of Information Act in December 1982 and all the States have followed
in due course. There has been only a low level use by business
of the material potentially available. Only about 10 per cent
of all requests (ie 3,400 each year) come from the business community,
and it has been suggested that the reason for this is that managers
of companies are concerned that if they seek information for example
on a competitor it is probable that the competitor will seek similar
information on them.
The Federal Attorney-General has publicly expressed
his disappointment that there has not been greater use made of
the Freedom of Information Act by businesses.
Academic research has highlighted that one of
the greatest advantages for businesses to come out of the Freedom
of Information Act is a review and improvement in the record keeping
procedures and practices of business. In general businesses have
focused on protection rather than exploiting the advantages of
having a Freedom of Information Act. The Australian Freedom of
Information Act provides access to documents (not information),
including computerised records. It includes reverse procedures
which means companies are notified before information about them
is disclosed to third parties and gives them the opportunity to
make representations and challenges. An Ombudsman and an Administrative
Appeals Tribunal are available for complaints and appeals.
New Zealand enacted its Official Information
Act in 1982, which came into force in mid-1983. New Zealand differs
from the other countries in this Annex by making "information"
rather than documents or records the subject matter of access,
however otherwise it is similar to the Australian legislation.
It gives very wide access rights to official information from
central government, public bodies and corporations and is fully
retrospective. A position of Information Ombudsman was created
to deal with information complaints. His decisions are mandatory
on the Minister or department concerned.
The European Union is leaning more favourably
toward open government decision-making processes. The Amsterdam
Treaty, effective from 1 May 1999, has introduced greater access
to official documents produced by the EU institutions. The European
Commission is currently consulting on its Green Paper on Public
Sector Information in the Information Society. The Green Paper
states in its introduction that public information is an absolute
pre-requisite for the competitiveness of European industry. Further,
that EU companies are at a serious disadvantage compared to their
American counterparts which benefit from "a highly developed
efficient public information system at all levels of the administration".
Several of the Member States have their own Freedom of Information
A non-retrospective Freedom of Information Act
was introduced in Ireland in April 1998. It has been increasingly
used by business. Figures from its introduction to December 1998
show that 14 per cent of all requests received were from business
(377 from 2,750 requests).
The former Labour Party Minister who oversaw
the introduction of the Act, Eithne Fitzgerald, said that the
Act would become a very powerful tool for business organisations
to get information about themselves held by government departments
and agencies. It can also be used to get government policy papers
and analysis of their sectors. All government departments and
a number of public bodies such as local authorities and health
boards are covered by the Act. The position of Information Commissioner,
whose decisions are binding, has been created.
France has had a retrospective Freedom of Information
Act since 1978 which provides the same access to individual citizens
as corporations. The Netherlands introduced a Freedom of Information
Act in 1991. Sweden has had a Freedom of the Press Act as part
of its constitution since 1766. All official documents are available
for inspection and copying but commercial organisations are excluded.
Access to documents is free unless longer than nine pages.
Austria has a constitutional law, dating from
1987, which provides a minimum framework, namely that all officials
at the federal, regional or local level should provide information
where requested so long as this does not conflict with a legal
obligation to maintain secrecy.
While Belgium has laws on civil transparency
which provide a general right of access to documents held by a
public authority, they cannot be used for commercial ends.
Italy has a general access law which provides
information free of charge. Portugal, Greece and Spain also have
a law providing general access to public sector information.
Freedom of Information and Business (Discussion
Draft), Jim Amos, The Constitution Unit, School of Public Policy,
UCL, October 1998.
Freedom of Information: The Law, the Practice
and the Ideal, 2nd edition, Patrick Birkinshaw, Butterworths,
Public Sector Information: A Key Resource
for Europe, Green Paper on Public Sector Information in the
Information Society, COM (1998) 585.
Freedom of Information: Consultation on Draft
Legislation, Home Office, May 1999.
"Business world taps into freedom of information",
Colm Keena, The Irish Times, 29 January 1999.
"Freedom of Information Act used as business
advantage", Shane Scott, The Baltimore Sun, 10 August
University of Tasmania: Freedom of Information
Public Access to Business Information held
by Government, Dr R S Baxter, (1997) Journal of Business Law,
Proceedings of Seminar on Commercial Confidentiality,
Commercial Confidentiality, National
Consumer Council, 1998.