The First-tier Tribunal (Information Rights) (“FtT“) has published an interesting decision on the disclosure of commercially confidential information. In John Eustace v The Information Commissioner, Southampton City Council (the “Council“) was ordered to disclose commercial information relating to the revenue stream it received from bus stop advertising, in part because other local authorities had been happy to disclose the same type of information in the past. These previous disclosures meant that the FtT regarded it less likely that disclosure would prejudice commercial interests in this case. Following this decision, it may be difficult for a public authority to justify non-disclosure if a different public authority has already disclosed information of the same type.

Facts

An advertiser had a contract to place advertisements in bus shelters owned by the Council. In the past, advertising space at bus shelters consisted of hard copy posters which had to be changed manually. However, Southampton Council introduced the use of digital panels at Council owned bus stops, which can show multiple advertisements in succession at a lower cost for maintenance. The applicant was concerned that this had obvious revenue benefits to advertisers but that those benefits were not necessarily being passed on to the Council. The applicant therefore requested the disclosure of “the financial benefits to Southampton City Council annually and over the life of the contract“. The Council refused the request on the grounds that the information was exempt from disclosure under section 43(2) FOIA which states:

Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).

This decision was upheld by the Information Commissioner on appeal.

First-tier Tribunal Decision

The applicant appealed to the FtT, arguing that the Information Commissioner’s decision was flawed because other local authorities had, in the past, disclosed information about their revenue streams from bus stop advertising. The Applicant argued that disclosure of this type of information could therefore not cause commercial prejudice within the meaning of s.43(2) FOIA. The ICO had distinguished this case from previous disclosures because the contract was more recent than previous disclosed contracts and it had been negotiated in an “unchanged” market. In the view of the ICO, this meant that disclosure would prejudice the Council’s commercial interests as anyone tendering for a future contract would know the price the Council would accept for the advertising space.

The FtT stated that if there is no clear material distinction to be drawn between this case and others where information has been disclosed, the previous disclosure may have some bearing on the question of likely prejudice to commercial interests.

Applying this test, the FtT found that there was no clear material distinction between this case and others. Although the contract was only four years old, the “digital revolution” had meant that the market had changed and when any future negotiation took place any advertiser would know that the old price would not be relevant. The FtT therefore treated the fact that the same type of information had previously been disclosed as a material consideration in its decision that the s.43(2) FOIA exemption did not apply.

Comment

While the FtT also applied the usual factors for determining whether commercial interests are prejudiced, this decision is an interesting insight into how the FtT will treat previous decisions by public authorities on the disclosure of similar information. Although each case should be treated as a separate matter requiring individual assessment, the FtT clearly suggested that if one public authority is willing to disclose commercial information in relation to a specific topic, another public authority may struggle to resist disclosure on the basis of commercial confidentiality.

Therefore, while this is not an absolute rule, companies should be aware that previous disclosures may have some bearing on the question of likely prejudice. For this reason, companies contracting with public authorities should consider whether they have particular concerns about the disclosure of certain commercial information. If so, they may wish to first seek advice on whether information of the same type has been previously disclosed by another public authority before providing that information to the public authority.