A recent decision of the Information Commissioner (IC) has ruled that Mid Suffolk District Council should release financial information in response to a request for a copy of the contract for repairing the Mid Suffolk Leisure Centre. The Council had previously withheld financial details on the basis that it considered the information was exempt from disclosure because to disclose such information would prejudice commercial interests.
The Council argued that disclosure of the financial information would mean the release of commercially sensitive information about the contractor and how it priced its tender. This could potentially give competitors an indication of how the contractor might price a future tender for work and may affect the contractor's competitive edge. The Council also put forward arguments that disclosure would prejudice the Council's own commercial interests in that it would affect its ability to get the best possible price for future contracts because it might deter other contractors from working with the Council.
The IC did not agree that this exemption applied and was firmly of the view that where third parties enter into contracts or business with public authorities they should be aware of Freedom of Information legislation and the fact that there needs to be accountability where public funds are involved. It was also relevant that the tendering process had ended some 18 months previously and this therefore had an impact on the sensitivity of the information.
More interesting however were the Commissioner's comments on the question of consulting with third parties. In the Information Tribunal (IT) decision Derry City Council v The Information Commissioner (EA/2006/0014) the IT had commented on the arguments put forward by Derry City Council regarding the likely prejudice to the commercial interests of Ryanair if the agreement between Derry City Council and Ryanair for use of Derry airport were disclosed. The IT was of the view that the arguments being made by the Council were not representations which had been made by Ryanair itself but simply the Council's own thoughts on the matter.
The IT commented that, although it could imagine that Ryanair might have good reasons to fear disclosure and its impact on its commercial interests, "we are not prepared to speculate whether those fears may have any justification in relation to the specific facts of this case. In the absence of any evidence on the point, therefore, we are unable to conclude that Ryanair's commercial interests would be likely to be prejudiced." In this latest decision the IC made it clear that in its view the effect of Ryanair was not that evidence of consultation needed to be provided in any case involving third party information. The IC is of the view though that Ryanair does mean that the origin of any arguments relating to a third party is key. Where the public authority does not provide evidence to indicate that the third party has been consulted, it should at least put forward some evidence that the arguments are the genuine concerns of the third party and not simply the public authority's thoughts itself.
When asked to provide such evidence Mid Suffolk District Council was not able to provide evidence of any specific arguments being made by the contractor other than that the contractor had indicated a preference for non-specific financial details being released. As a result the Commissioner paid very little heed to the arguments put forward as regards the commercial interests of the contractor as the evidence suggested that they simply originated from the Council and were not the concerns of the contractor.
This is clear evidence that the Information Commissioner under the UK FOI legislation is taking a tougher line on the origin of any arguments of prejudice to the commercial interests of a third party. It is possible, however, to pay too much heed to the arguments of a third party, as the case of Ms May Docherty and Lothian NHS Board showed. In that case (involving a request for a copy of the contract for the New Edinburgh Royal Infirmary) one of the criticisms levelled at NHS Lothian Health Board was that it simply passed on the arguments being made by Consort (the PFI Company) without making any independent assessment itself as to the applicability of the arguments being made. These two decisions show that, whilst it is important to consult, the public authority must show that it has made an independent assessment as to whether any particular exemption applies.