Freedom of Information Act a briefing

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Freedom of Information Acta briefing
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The Act

• Freedom of Information Act 2000
• Full implementation on 1 January 2005
• Shadow running in MoD at present

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Main Feature

• Information Commissioner
• FOI is all about the right of access to
  information held by public authorities

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Who can access information?

• anyone
• yes, anyone you, me, your competitors

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What can we access?

• any information can be requested
• and there is a general presumption for disclosure
• and it is retrospective in effect!!

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Which is great news!

• we can read our competitors stuff
• we can make enquiries on MoD policy

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BUT

• do we really want everyone seeing our stuff?

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• The general right to access information is
  limited by exemptions
• absolute (a few)
• qualified (quite a lot)

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Qualified?

• applies only where the public interest in
  invoking the exemption outweighs the public
  interest in disclosing the information

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The main general exemptions

• absolute exemption for information provided to a
  public authority in confidence (s41) (but only
  where the disclosure would be an actionable
  breach of confidence)

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• a qualified exemption (i.e. subject to the public
  interest test) for
• trade secrets and
• information the disclosure of which would (or
  would be likely to) prejudice the commercial
  interests (s43)

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Plus, for the defence sector

• s23 GCHQ, Security Service, Secret Intelligence
  Service, special forces
• s24(1) safeguarding national security (but
  qualified)

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• s26 Defence but public interest test.
  Exempts defence information where disclosure is
  likely to prejudice
• defence of UK
• capability, effectiveness or security of any
  relevant forces
• s27 International relations

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ss41 and 43

• confidentiality
• commercial interests
• http//www.informationcommissioner.gov.uk/cms/Docu
  mentUploads/Pub20Sec20Contracts.pdf

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• s41 Confidentiality exemption if release of
  information would amount to an actionable breach
  of confidence
• absolute
• but implicit is a PI test!

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Meaning?

• information must have necessary quality of
  confidence
• information must have been imparted in
  circumstances importing a duty of confidence
• unauthorised or to the detriment of the imparter

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ICs Public Sector Contracts guidance

• new contracts
• clearly identify what is confidential/
  commercially sensitive and put in a schedule
• improves chance of non-disclosure helps
  identify confidentiality situations
• existing contracts
• encourage public authorities to consult

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MoD draft guidelines

• information must be 3rd partys
• disclosure would give rise to an actionable
  breach of confidence
• but worth having a look at www.foi.mod.uk/freedom.
  asp

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Defcon 531

• the fact that you call something confidential
  doesnt make it confidential
• it creates a contractual duty - but does it
  create an actionable breach of confidence?
• is Defcon 531 enough to defeat the obligation to
  disclose?
• (no)

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Adam Rose

• Partner and Head
• Business and Technology Services
• Berwin Leighton Paisner
• adam.rose_at_blplaw.com
• 07 September 2004