Articles and Publications
Freedom of Information
10/Jan/2005
The Freedom of Information Act 2000 ("FOIA") came into force on 1 January 2005. Its object is to improve transparency and openness within the public sector. Information ranging from how much was spent on the Lord Mayor's Christmas drinks party to the construction bill for the new local primary school will be available to anyone and everyone.
The market for outsourced public services is "to grow beyond 50% in three years" (The Financial Times, 8 December 2004). The opportunity the Act gives to scrutinise those activities is therefore likely to be increasingly relevant.
Why does it effect you?
The Act gives, to persons anywhere in the world, the right to access information held by public authorities including central government, local authorities, the NHS, schools and the police. As a result, much more information will be freely available about the way in which we are governed and the way decisions that affect all our lives are reached, at both a national and local level.
Certain information including that relating to national security or of a commercially sensitive nature will be exempt.
What is disclosable?
Disclosable information will include potentially sensitive information including tender notes, invoices and contracts.
The risk for companies is that either the media or a business competitor can exploit their commercially sensitive information which is publicly available. It is expected that the majority of requests for information will be in relation to the private sector provision of public services and therefore companies that deal with the public sector should be aware that information regarding their dealings may be subject to disclosure and they should look to ways in which they can limit disclosure.
Don't be put off!
The Act should not discourage companies from dealing with the public sector and there are a number of steps which companies can address in their contract negotiations and drafting in order to minimise the effect of the Act:
Take Advantage
There is no reason why you yourself cannot take the opportunity to find out more about the market, the government and your competitors. With the news that the Government has decided to relax the rules on the fees payable for disclosure of information there is now little obstacle in the way of accessing information which could be valuable to your company.
The market for outsourced public services is "to grow beyond 50% in three years" (The Financial Times, 8 December 2004). The opportunity the Act gives to scrutinise those activities is therefore likely to be increasingly relevant.
Why does it effect you?
The Act gives, to persons anywhere in the world, the right to access information held by public authorities including central government, local authorities, the NHS, schools and the police. As a result, much more information will be freely available about the way in which we are governed and the way decisions that affect all our lives are reached, at both a national and local level.
Certain information including that relating to national security or of a commercially sensitive nature will be exempt.
What is disclosable?
Disclosable information will include potentially sensitive information including tender notes, invoices and contracts.
The risk for companies is that either the media or a business competitor can exploit their commercially sensitive information which is publicly available. It is expected that the majority of requests for information will be in relation to the private sector provision of public services and therefore companies that deal with the public sector should be aware that information regarding their dealings may be subject to disclosure and they should look to ways in which they can limit disclosure.
Don't be put off!
The Act should not discourage companies from dealing with the public sector and there are a number of steps which companies can address in their contract negotiations and drafting in order to minimise the effect of the Act:
- Tell the public sector body with whom you contract what information you consider to be exempt from the FOIA 2000 disclosure requirements and evidence this in the contract. Resolving this prior to any request will avoid a dispute later and will reduce the risk of information being inadvertently disclosed. If, however, disclosure is made there is the prospect of seeking a remedy.
- Make it a term of contract that any request made to the public body for disclosure of information, which involves your company, should first be referred to you for consent. Forewarning of the disclosure will allow you to dispute the disclosure or at least be prepared for the consequence.
- The Act applies retrospectively and so contracts previously entered into with a public body should be similarly reviewed. Contracts made 7, 15 or even 50 years ago will be subject to the same disclosure requirements.
Take Advantage
There is no reason why you yourself cannot take the opportunity to find out more about the market, the government and your competitors. With the news that the Government has decided to relax the rules on the fees payable for disclosure of information there is now little obstacle in the way of accessing information which could be valuable to your company.
