Department for Transport protects data requested under FOIA as confidential
Information access regimes such as the Freedom of Information Act 2000 (FOIA) are an increasingly common way for competitors to try to access information that a company has handed over to a public authority. This may include information that has been handed over during the course of a procurement exercise, as part of a regulatory approval process or as part of providing services on behalf of a public authority.
Not all information has to be disclosed and this recent decision highlights the difficulty in knowing whether a public authority has to disclose commercial information to a requester. Understanding information access regimes is important both for managing the risks of disclosure as well as seeking access to publically available information.
In more detail
Over the summer the First Tier Tribunal heard an appeal of a Department for Transport decision not to release certain train passenger data in response to a FOIA request. The Tribunal upheld the decision and confirmed that section 41(1) of the FOIA (which provides an exemption for third party information that if disclosed would constitute an actionable breach of confidence) was satisfied.
Franchised train operating companies are required by their franchise agreements to provide data on passenger loads to the Department for Transport. The Tribunal rejected the argument that this data was not confidential because anyone could count the number of passengers and recognised that it made a difference that the data had been collected as part of a precise and large scale exercise in the course of a commercial undertaking. The Tribunal accepted that release of this data could cause commercial prejudice and in particular could be analysed by other competing train operating companies, or other transport operators (e.g. airlines), to calculate revenues. The Tribunal also recognised that release of such information could affect the Department for Transport’s relationships with other private sector organisations. This is no doubt, at least in part, because such a disclosure would make private sector organisations more reluctant to share data and do business with the Department for Transport.
Although only a First Tier Tribunal decision, the fact that it supports the protection of confidential information and recognises the sensitivities for private companies in disclosing data to public authorities will be welcomed by private companies that disclose confidential and commercially sensitive information to public authorities.
We can help
Understanding information access regimes is important both for managing the risks of disclosure as well as seeking access to publically available information.
We can help by:
- managing the provision of information to public authorities;
- co-ordinating large scale FOIA requests to get access to information held by public authorities and provide advice if information is refused;
- advising you on responding to a public authority who has received a request from a third party for your commercial/confidential information; and
- advising you on FOIA strategies for long term high profile projects with government (e.g. building the right relationships, being in a position to be able to respond quickly and preparing for news stories that might break).