Local Authorities across the country are preparing to release data on payments for goods and services over £500. Some have asked for assistance balancing the public interest and commercial confidentiality, in particular how the FOIA might work in this context – for example:
‘If this data was subject to an FOI request would we have to publish it anyway?’
This refers to whether payments are covered by s43 exemptions – what is often, but misleadingly known as ‘commercial confidentiality’. On behalf of the Panel I asked the Information Commissioner’s Office for some leading decisions and commentary. David Evans, Senior Information Policy Officer at the ICO has been most helpful. He has agreed to the following for publication:
‘There have been few Tribunal cases concerning local authorities’ use of the s43 exemption (“Commercial interests”). One that does stand out is the Derry City Council case;
This focused on the commercial relationship between Derry City Council and Ryanair. A request was made in 2005 for the financial information held by the Council about this relationship. The council refused to disclose the info citing that it would prejudice both its own and Ryanair’s commercial interests. The requestor complained to the ICO and our decision was that the information should be disclosed. In turn this lead to the appeal to the Tribunal.
The Tribunal took the view that disclosure of the information would prejudice the council’s commercial position (thus engaging the exemption). They then looked at the Public Interest Test (PIT) and reached the conclusion that the risk to the council’s position was not enough to outweigh the public interest factors that supported disclosure.
There have been a number of Decision Notices (DNs) that support quite a narrow approach to the “commercial interests” part of section 43 (trade secrets are a different matter – no “prejudice test” is required but the PIT will have to be considered). Consistent across them all is that to engage the exemption the public authority has to show that if the requested information was disclosed then there was a real likelihood (and not just a possibility) of prejudice to their commercial position.
If it is the commercial position of a third party that is potentially under threat then the public authority cannot just speculate about this – it needs to provide evidence from the third party as to why its position is threatened and be sure that the authority itself can defend that position. In other words that they thoroughly understand and can explain why and how there would or would be likely commercial detriment to the third party.
Below I’ve set out a brief table by case reference and public authority.
Case reference Public authority FS50066753 and
EA/2006/0014 (Tribunal ref)
Derry City Council (the Ryanair case) FS50090866 Waverley Borough Council FS50063478 and
EA/2005/005 (Tribunal ref)
National Maritime Museum
(John Connor Press Associates)
FS50141012 Wirral MBC FS50161274* Leeds City Council FS50131138
FS 50083381 and
Mid-Suffolk District Council
Department of Health
*This shows a successful use of the commercial interest exemption because of the circumstances of the case
**The Tribunal decision in this case includes a comprehensive examination of s43 and introduces the OGC’s “FOI (Civil Procurement) Policy and Guidance”. A copy of this can be found at:
All the cases can be found either on our website at;
or on the First Tier Tribunal (Information Rights);
As well as the full DN there is also a case summary on our site.
Our approach has always been that basic information about contracts should be readily available albeit with the traces of information which give an organisation a commercial edge more likely to be protected by the legislation. As FOI case law has developed this is effectively what has happened. Much of this information is of course time sensitive.’