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Navigating Commercial Interests

Navigating Commercial Interests - A labyrinth of nuance

In our webinar, Navigating Commercial Interests on 17th March, we’re going to be exploring section 43, the Commercial Interests exemption for FOI.

Within this area, two opposing forces are at play, secrecy and transparency. Both have an important role to play in our democracy. However, too much of one or the other can be harmful. Striking that delicate balance between the two is far from an easy mandate. That is the task that FOI practitioners are charged with for this exemption.

Looking through this exemption, what quickly becomes apparent is the level of nuance - there are very few elements that are completely black and white.

Is it a secret?

Starting with section 43(1): is it a trade secret? The ICO provides guidance on the sorts of areas that may be covered. But, and this is the sting, the list isn’t exhaustive and, just because the information falls into one of these categories it doesn’t mean that it actually is a trade or business secret.

Then there’s the added dimension of needing to apply the public interest test. After all, even if it is secret, that doesn’t always make it exempt from release. If, for example, the information could affect people’s health, then there is a strong argument that it is in the public interest to release the information, particularly if disclosing that information will, or could, protect the public.

Third parties and prejudice

Not all things that fall under commercial interests involve third parties. However, when they do, there’s the added complication of needing to identify the information potentially affected, and consulting with the third party - and all of this within the standard FOI timescales. Quite a tall order.

When discussing the prejudice based exemption - 43(2) of the act, the ICO guidance demonstrates the importance of the consultation with third parties. In essence, you cannot assume that you are right about whether something is commercially sensitive or not. This requires consultation with the third parties affected.

An example of this might be training material, which some third parties might consider a more commercially sensitive asset than the names of their customers. Understanding from the third party what really is commercially sensitive for them might also remove the need to apply this exemption in the first place. Also, in cases where the consultation hasn’t occurred, this one fact has led to tribunals finding in favour of disclosure. Because without evidence, prejudice (harm) is merely speculation.

It’s not enough to just consult with the third parties on whether something is commercially sensitive. As the examples in the ICO guidance also show, there has to be a causal link between release of the information and prejudice. Use of this exemption requires detail on how release of information will cause, or is likely to cause, harm. This forms part of the prejudice test which needs to be applied when using 43 (2).

Alongside this, yet more factors come into play, such as timing. Some information is only commercially sensitive within a specific window of time, such as in the case of contract tendering where disclosure of pricing information, for example, might prejudice the tendering process. However, disclosure of such information might instead promote healthy competition. Even with timing, there is tricky balance.

NCND, Neither Confirm Nor Deny

Section 43(3) adds a final element into this already, highly faceted area. Unlike 43(1) and 43 (2) using this is not about whether the actual content that is being requested is commercially sensitive. For this exemption it’s about whether just admitting that you do or do not hold the information will, or could, cause harm. Like the other exemptions, having the evidence to support use is pivotal, and requires consultation with the parties whose commercial interests could be affected.

The way through the labyrinth

Section 43 is a marriage between two opposing forces. Making this union possible requires FOI practitioners to navigate their way through a labyrinth of subtlety and nuance aided by published guidance, history and experience. Our webinar brings together expert practitioners who, by sharing their good (and bad) experiences, case histories and top tips will help their fellow practitioners steer a course through the turbulent waters of protecting both the commercial and the public interest.

Register for the 'Navigating Commercial Interests' webinar

Join us at 11am on Thursday 17th March when FOI experts Lynn Wyeth, Sarah Laws and David Coulson will discuss this tricky subject area, including the considerations required when applying this exemption.

Register

Questions?

We're now taking questions for this session (you'll also be able to ask them on the day). So if you have question you'd like our panel to address, please submit them using the comment box below.

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