In late 2006, the Department of Trade and Industry published a consultation on a draft statutory instrument to allow disclosure of certain information under Part 9 of the Enterprise Act 2002 ('the EA') for the purposes of prescribed civil proceedings under that Act.

Disclosure of information and Part 9 EA

In late 2006, the Department of Trade and Industry published a consultation on a draft statutory instrument to allow disclosure of certain information under Part 9 of the Enterprise Act 2002 ('the EA') which governs the disclosure of certain types of information obtained by the OFT and others under various pieces of competition and trading legislation.

In particular, it restricts disclosure of 'specified information', such as information obtained by the OFT in relation to a cartel investigation, or by a local authority in relation to its trading standards functions.

The Scottish Information Commissioner has, in several cases under freedom of information legislation, stated his view that Part 9 of the EA does not create an absolute prohibition on disclosure of information requested under either the Freedom of Information (Scotland) Act 2002 or the Freedom of Information Act 2000. This view contrasts directly with the views of bodies such as the DTI and the Department of Constitutional Affairs, who are firmly of the view that the intention and effect of Part 9 is to prevent such disclosure.

In any event, the Companies Act 2006 adds a new section 241A to Part 9 EA to allow disclosure of certain information for civil proceedings. The information able to be disclosed and the definition of the civil proceedings in which this disclosure is permitted will be set out in secondary legislation. The DTI agreed to give stakeholders an opportunity to comment on its proposals for the secondary legislation, which was needed to prescribe the relevant civil proceeding. A consultation was held to enable comments on the draft Order; this closed on 31 January 2007 and the DTI is yet to respond.