Disappointed bidders in public procurement exercises have often resorted to the Freedom of Information Act (“FOIA”) to try to obtain information which may assist them in bringing a claim. Indeed, anyone is entitled to request information from a public authority which could relate to a variety of different procurements for a variety of different reasons, including purely collateral reasons like checking the proper performance of a separate contract.
Tender documentation and bids normally make it clear that information is provided in confidence but some information is more confidential than others. A contractor may not mind disclosing how many full-time employees it has but would be more concerned that information such as pricing, unit costs and discounts does not become generally available.
There is an exemption under section 43 of FOIA which allows the non-disclosure of information which would prejudice commercial interests. However the exemption only applies if there is deemed to be no public interest in wider disclosure.
In a case recently before the First Tier Tribunal, a local authority had already been ordered to disclose price and discount information by the Information Commissioner on the grounds that it was felt to be in the public interest to disclose it. When the decision was appealed, the Council somewhat ingeniously changed its defence to claim an exemption under section 41.
Section 41 protects information from disclosure when doing so would constitute an actionable breach of confidence. The court was satisfied that the test for breach of confidence could be established in relation to the pricing information. On public interest, the court considered that there must be specific factors in favour of disclosure which outweigh the public interest in the maintenance of confidentiality. Here, there was no evidence of any criticism of the tender process or that it had been carried out improperly or that the public had been misled. On the other side, there was a considerable public interest in being able to carry out the tender process effectively and maintaining a duty of confidence. Accordingly disclosure was refused.
The case is interesting because it suggests that the section 41 exemption might be a more effective protection of confidential information than section 43.