The Information Commissioner’s Office ('ICO') has recently published guidance on the relative scope of Regulation 43 of The Public Contracts Regulations 2006 (the 'Regulations') and sections 41, 43 and 44 of The Freedom of Information Act 2000 (FOIA).
Regulation 43 of the Regulations requires a contracting authority not to disclose any information 'forwarded by' a bidder which the bidder has 'reasonably designated as confidential'. Such a designation will only be 'reasonable' for these purposes, says the ICO, if the information is confidential under a common law duty of confidence, and the protection does not last indefinitely.
Section 44 of FOIA provides an absolute protection to disclosure where information is protected by a statutory prohibition. This means that if information forwarded by a bidder (eg, submitted in its tender) is protected under Regulation 43 then it has absolute protection from disclosure under Section 44 of FOIA
Section 43 of FOIA provides a further exemption from the duty to disclose where such disclosure would be prejudicial to someone’s commercial interests. It is wider in scope than Regulation 43 as it does not require information to be 'forwarded by' a bidder and so can also protect mutually agreed information (eg, information mutually agreed as part of a contract).
The guidance is helpful to contracting authorities as it confirms that information that is properly within Regulation 43 of the Regulations will have absolute protection from disclosure under Section 44 of FOIA. It also offers guidance on information within a contract which may also be protected. Contracting authorities should ensure they are familiar with these principles and do not unwittingly disclose information which has the benefit of statutory protection.