Q: We're an agency about to pitch for a public sector client. I'm told the Freedom of Information Act could help in our preparation. Is this true?
A: The Freedom of Information Act 2000 (FOIA) allows individuals or organisations the right to access information held by public authorities, such as Government departments, councils, hospitals and universities. Many FOIA requests are made by journalists, but public bodies also create and record information of wider commercial interest.
You could source information relating to:
- How the public authority buys services
This could be information within commercial tenders, details of successful bidders, contracts, prices and payment terms. It may also cover information about the marketing budgets of the authority and how it has spent that money.
- Commercial and competitor intelligence
Obtaining a better understanding of how a public market place operates, with a view to better marketing to that sector.
- Key personnel
Identifying the decision makers and influencers within a public body.
Q: Would any information be exempt from disclosure?
A: Certain information is exempt. The exemptions most relevant include where:
- the request relates to information provided to the public authority in confidence,
- disclosure may prejudice the commercial interests of any person; or
- to provide the requested information would involve a disclosure of personal data protected by the Data Protection Act 1998.
The exemptions are tightly drawn. The confidence exemption would not, for example, cover information a public authority had generated itself, such as contracts or documents created in the course of contractual negotiations, unless the document recorded more than just the mutual obligations of the parties. When considering commercial interests, a public authority would have to produce persuasive evidence of the risk of commercial prejudice being real and the resulting harm, significant, to prevent disclosure.
Past FOIA requests have included information on the employees of a public body. This will often be personal data under the Data Protection Act, though decisions of the regulator of FOIA the ‘Information Commissioner have permitted disclosures of certain personnel information.
These circumstances are:
- where to do so would not involve a breach of confidence by the public employer
- where the data is not sensitive in any way (such as health information)
- where the information relates to the employee's professional public life rather than their private life
- where the employee(s) in question are more the senior officials who should generally expect more information about them to be disclosed, given the nature of their public functions.
Q: Once I obtain this information, could it be re-used?
A: Any business looking to compile marketing lists from information derived from FOIA requests should be aware that they would also have to comply with the Data Protection Act 1998, for example whether the individuals had consented to this use for their information.
In addition, any commercial re-use of information obtained under a Freedom of Information request may first need to be licensed by the public authority under the Re-use of Public Sector Information Regulations 2005.
Q: So how do I make a FOIA request?
A: Request should be made in writing (by letter or email), giving the applicants name and an address to which the reply should be sent.
Sally Annereau is a data protection analyst at Taylor Wessing LLP