back to article Privacy watchdog issues guidance on FOI exemptions

Public authorities who want to keep information secret to protect the commercial interests of companies they work with must explain exactly what damage will be done by disclosure, the Information Commissioner's Office (ICO) has said. The privacy regulator has issued three sets of guidelines on when public authorities can keep …

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Waffle.

Waffle waffle waffle, waffle. Waffle. Wibble.

Mu.

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Coat

Not sure what this story's about.

I appreciate that a large proportion of your readership don't have an in-depth knowledge of the Freedom of Information Act or the Data Protection Act but this was barely a story.

'ICO issue guidance.'

woo.

As for using the commercial interest exemption (S.43), any competent FOI Officer will already know what can and can't be released (and will probably have been in several battles with other departments in their organisation who are desperate to keep hold of their info).

Mine's the own with the copy of the Freedom of Information Act in one pocket and the Data Protection Act in the other.

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The contract is between the public and the company

So why should the public be kept out of it?

If the company doesn't want the contract known about, they don't get the contract.

If the competitors complain because "we were cheaper" then this MUST already have been explained by procedures before accepting the higher bid.

And, if a competitor who lost wants to challenge our decision though our proxies, their arguments must be made publicaly too, else we don't know what their beef is and whether it is genuine. If they don't like airing this in public rather than to individuals, leave.

The negotiations BEFORE signing a contract, sure. Keep them secret. Except maybe the terms and aims because the public may not want those terms applied (e.g. if the work is cancelled by the next government, the monies have to be paid anyway) or the aims are not wanted (e.g. ID cards and the NIR to back them up). But the negotiations, can be secret so as not to have a stupid under-bidding-war which would end with lots of money spent on a project that fails or runs hugely over budget because of lies in bidding.

Though given that the last seems to happen all too regularly, even that is debatable. However, the terms and aims should allow us to see what's going to happen. E.g. if it runs over budget, does the contractor get paid half the overrun? What are the liabilities of either party if either one folds. etc.

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Moot point

I have enquired whether, re BT/Phorm, information on the initial enquiries made by the City of London Police is "exempt" information... Since it seems that that they only went as far as looking to see whether they should look properly, my view is that it doesn't fall within the scope of the FOI exemptions (investigations looking to see it a person had committed an offence, basically) - I'm not holding my breath waiting for an official answer though...

Perhaps some gung ho Investigative Reg Journo would care to look at the FOI and have a bash too?

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So this is the answer now

Whenever a FOI request is put in "it would damage the commercial interests of one of our partner companies".

We need complete, total transparency, with defence of the realm being the only exemption. And that one to be used rarely. The bloated public sector bureaucrats need to get these thing through their heads, they serve us, they don't run the place, and "it might make me look bad" is not a reason for hiding information in the public interest.

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Anonymous Coward

No confidence

OK, so Local Authorities deal with some complicated stuff--Social Services come to mind--and I;m left with the feeling that this guidance is a bit over-general, but can't be specific.

And my own experience suggests that, rather risk the release information they should not, they will not release the information they should.

With Social Services employing contractors for some work, there's even more opportunity for date protection to gum up the works.

You'd think they would have worked out the Data Protection Acts, and their registrations, by now.

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@ Mark

What a lot of people don't understand a lot of contract information can be released without any problems at all. What the exemption deals with is those areas where release of the information would be likely to harm someones' commercial interests (and that includes the public authorities interests as well).

If you had a particular way of working that no other company had and this was disclosed as part of an FOI just exactly how much harm do you think that would do to your business?

Just shouting 'It's our money!!' a lot is a bit daft. What happens when a local authority can't get anyone to tender for work that needs to be done or the only ones that do are rubbish because other companies don't want their trade secrets out in the open?

As I said earlier, any FOI officer worth their salt will look very hard at whether a particular piece of info will genuinely do harm and can and do override their own managers, directors and the wailing of the company involved if they don't believe that that harm will occur.

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A subtle hint of testicle ?

Not like little old ICO to start telling people what to do, for ICO that's quite pushy.

Not pushy enough though, for a start these missives constitute merely 'guidance', and as usual will be largely be ignored. Even more unfortunately, when they aren't just brushed under the table, they appear to stipulate that public authorities must merely convince themselves that there reasoning is sound and then supply a summary of that reasoning.

Of course you can then appeal, and the public authority must have an internal review and convince itself for a second time before you get the right of appeal to ICO, who, if they're in a fightin' mood, might give said authority a stern look.

I would have thought that in order to make the 'guidance' stick in the first instance it really ought to come with some kind of addendum explaining exactly what the consequences of failing to comply with it are. No wait, it does already, there aren't any!

Sigh. In summary, FOIA / ICO, much better than nowt, but still quite shit.

Oh, @AC 09:34 :

The press release is dated 12 November 2008, Kablenet reported it on 13 November. So last week, these guidelines didn't exist, now they do. They are new. As in NEWs. See how this works ?

I _DO_ have an in depth knowledge of both FOIA and the DPA, but I didn't know about the new guidance. Some of us actually have better things to do with our time than constantly hitting refresh on the BBC FOIA blog. YMMV

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Anonymous Coward

@The Other Steve - 'Press Release'

I wouldn't normally bother to respond to that kind of comment but I've had a lot of coffee today.

Guidance from the ICO on s.43 does already exist (last revised in 2006) in the form of Awareness Guidance No. 5.

All this additional guidance says is 'If you're going to use S.43 exemption, get the companies view.' It might be new but is that news? Really?

The ICO obviously have no idea just what a royal pain in the arse that's going be as well. 20 working days is short enough time as it is without having to deal with the delaying tactics of Private Interests Ltd.

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@Secretgeek

But NONE of the contract is being released generally because *some* of it may be genuinely secretive.

Now, please tell us how a contract that is already signed and sealed can, if told to the public WHO PAY IT, would result in commercial harm to either party? Excepting an NDA saying "if you tell anyone, we'll sue you".

Go ahead.

Waiting.

PS: If "If you had a particular way of working that no other company had and this was disclosed as part of an FOI just exactly how much harm do you think that would do to your business?"

I would say "none". I've already got the contract and the secret sauce would be a way to ensure that you have a monopoly over supplying that result. Well, keep it secret but don't get paid for it.

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@Secretgeek

But NONE of the contract is being released generally because *some* of it may be genuinely secretive.

Now, please tell us how a contract that is already signed and sealed can, if told to the public WHO PAY IT, would result in commercial harm to either party? Excepting an NDA saying "if you tell anyone, we'll sue you".

Go ahead.

Waiting.

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@Mark

I'm trying not to be too harsh but you obviously have a very simplistic idea of how FOIA or corporate procurement in a public authority works. That's not your fault and I won't hold it against you.

To explain.

Re: 'None of the contract is being released.' - If this is occuring then it's a misuse of FOIA and can and should be challenged. The clue is in the title Freedom of INFORMATION Act. Not freedom of documents, freedom of contracts or any other such thing. The guidance is clear - although some information in a contract may be subject to the s.43 exemption a significant portion of it probably won't be and should be released.

Re: 'Now, please tell us how a contract that is already signed and sealed can, if told to the public WHO PAY IT, would result in commercial harm to either party?' - Contracts don't last forever. They also contain more information than 'We will pay this amount for that service product.'. In many cases the amount that a contract is worth, once signed and 'sealed' can be released into the public. However, this isn't the kind of information we're talking about. How many companies can you name that would be happy to give their profit margins, operating costs and methods or the projected values of their contracts to anyone that asked for it? If you get a number any higher than 0 you've made a mistake.

The whole point is - If a company cannot be assured that information which would assist it's competitors will not be made public then they will either not bid for the work or raise their prices in order to cover the potential loss of revenue. Now you tell me - how is that in the public interest?

Re: 'I would say "none". I've already got the contract and the secret sauce would be a way to ensure that you have a monopoly over supplying that result. Well, keep it secret but don't get paid for it.' - Are you a communist? So no company working with a public authority should be allowed to have trade secrets? That's a laughable comment.

Fail.

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@secretgeek

"Re: 'None of the contract is being released.' - If this is occuring then it's a misuse of FOIA and can and should be challenged."

This is occurring. El Reg have some examples and there are others. However, they take years to wind through because nobody really wants to find out. So it's only important people or people with enough money who can buy attention get through this.

"Contracts don't last forever. They also contain more information than 'We will pay this amount for that service product.'. In many cases the amount that a contract is worth, once signed and 'sealed' can be released into the public."

Uh, how can I be asked to pay into a pot that then gets divvied up and I have no idea how? When filling in a claim form, I can't just put down the total, I have to itemise (and produce receipts) each item. Lasting forever isn't commercially sensitive.

"How many companies can you name that would be happy to give their profit margins, operating costs and methods or the projected values of their contracts to anyone that asked for it?"

I don't ask McDonalds what their profit level on a Big Mac is. And if it's publicly traded, the overall profit level and projections are a mandated public document. So you're making a strawman and if you're not, that level of information is already demanded as public record anyway.

"The whole point is - If a company cannot be assured that information which would assist it's competitors will not be made public then they will either not bid for the work or raise their prices in order to cover the potential loss of revenue. Now you tell me - how is that in the public interest"

Yes. If the company can't play because someone else will copy it cheaper/better then the public is served by that information being made public. If they don't want to play because their profit will be less, how much profit do they make with no work? We aren't putting a gun to their head to apply for a contract (though they will put a gun to my head if I refuse to pay taxes and refuse to be arrested for it). If the prices raise, then the free market has been proven not to work (else others would be able to bid lower).

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@Mark

Re: 'This is occurring. ' - Not sure what your point is with important people and people with money. If you've put in a request that isn't dealt with correctly then appeal, first to the relevant authority and then to the ICO and then to the Information Tribunal. Yes it will take a long time, yes the authority will try and stall but the process is there, it's well established and it's your legal right. Stop whining about it and get writing.

Re: 'Uh, how can I be asked to pay into a pot that then gets divvied up and I have no idea how?' Of course you can find out how. Every public authority is obliged to make their accounts available to the public. That's where you'll find the infrmation you're looking for. Again, it seems you're displaying a limited knowledge of contracts. A contract will not list how monies have been spent. It should detail how monies are to be spent. A significant difference. If you're asking for a contract expecting to get copies of receipts then you're always going to be disappointed.

Re: 'Lasting forever isn't commercially sensitive.' ? What? I feel you've missed my point (again) which was that at some point in the future the public authority is going to have to go out to obtain tenders/bids for the service. It's then that the authority could find that they're having to pay more because there are fewer companies willing to bid for the work. To take your McD's analogy, if the contract specified the ingredients for their secret sauce do you really think they would bid for the service when they expect that the authority they're working for to give that info out to anyone that asks for it? Do you? Really?

Re: 'We aren't putting a gun to their head to apply for a contract.' And so the lesson continues. You're absolutely right we aren't 'putting a gun to their head' (a little over dramatic there IMO) but there are services, works and products that a public authority needs to obtain in order to serve the public. What happens when no-one is willing to supply those? "I'm sorry madam but unfortunately we are no longer able to operate a refuge service for victims of domestic violence because nobody was willing to bid for the work." 'I'm sorry members of the public but we've had to pay a higher price for a poorer service because of the lack of competition in xyz area."

Re:"If the prices raise, then the free market has been proven not to work." So you are a communist then. Rightly or wrongly, the free market exists (and before you get started I'm not going to debate that statement) and public authorities have to operate within it in a way that obtains best value for the public. Yes, I am aware that this doesn't always happen but that's off subject. This is the situation as it stands. Best of a bad job you might say. Deal with it.

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