We have a lot of questions from public authorities and suppliers about the scope of the 'commercial interests' exemption under the Freedom of Information Act, particularly in relation to tenders. A recent Information Tribunal judgment (Fred Keene v Central Office of Information) throws a little more light on things. Fred's business had been one of the unsuccessful bidders when the COI had invited tenders from reprographics businesses several years ago. In January 2007 Fred made a request for information to the COI under the FOIA regarding the selection process, in response to which the COI supplied some information but withheld the crucial evaluation and scoring details.
The COI relied on the Part II FOIA commercial exemption that disclosure would be likely to prejudice the commercial interests of any person, including the public authority holding the information. They argued that low scores or negative comments about the bidding businesses would damage their commercial interests by adversely affecting their reputation, and further that the commercial interests of COI would be damaged as disclosure of the disputed information would deter businesses from tendering, or providing adequate information, in the future.
The Tribunal found that:
- the meaning of 'likely to prejudice' was that there would be a real and significant risk, or 'weighty chance', of detriment or damage to the commercial interests of a party;
- the commercial interests of the bidding business would not be prejudiced by disclosure of the information as there was no commercially sensitive information or performance related comment in the evaluation information - it was held that although an application form was described as 'not great' and the applicant 'would not be able to handle COI's business', these comments were about entirely objective matters and therefore did not reflect negative opinion; and
- the commercial interests of COI would not be prejudiced as the COI had established tendering procedures that businesses would have to abide by, and most businesses were aware that as a public body the COI was subject to FOIA disclosure obligations.
As the test had not been met the COI was obliged to disclose the disputed information. Fred wins. Go Fred!
The court considered as an aside that the public interest in maintaining the exception did not outweigh the 'very strong public interest in promoting transparency and accountability in relation to tendering and procurement decisions of the COI and its expenditure of public funds'. Always good to know.
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