But how will this impact on the confidentiality of other
agreements, such as IT contracts, made with public authorities?
The ruling concerns a request made to Derry City
Council early last year, seeking details of the Council’s agreement
with Ryanair on the use of the airport, and how much the low-budget
airline was paying to use airport facilities.
Under the Freedom of Information Act (FOIA), public authorities
are obliged to disclose properly requested information unless an
exemption applies. In most cases, even where an exemption applies,
they must still disclose information to the public unless the
public interest in protecting it is greater than the competing
public interest in disclosure.
In this case the Council argued that it did not have to release
the information under three exemptions:
- That disclosing it “would, or would be likely to, prejudice”
the UK’s economic interests or the financial interests of a public
authority – in this case the economic interests of the region and
the commercial interests of the airport and of Ryanair;
- That it was obtained from a third party (Ryanair) and to
disclose the information would be a breach of confidence actionable
by that third party or any other person; and
- That to disclose it “would, or would be likely to, prejudice
the commercial interests of any person”, including the Council
itself.
The Council refused to release the details and a complaint was
lodged with the Information Commissioner’s Office.
The Information Commissioner, Richard Thomas, considered each
exemption in turn.
Economic and financial prejudice
To claim this exemption, said the Commissioner, there had to be
a “real and significant risk” of prejudice, and this had not been
shown.
He found that at the time of the request the agreement was
almost six years old and some of the information in it – such as
the flight schedule and the duty to keep the service confidential
until announced by Ryanair – was already in the public domain.
In addition, the Council’s circumstances had changed since the
agreement was negotiated. At that time the Council was trying to
set up an airport and encourage investment, while at the time of
the request the airport was already established and other carriers
were using its facilities.
The economic and financial considerations, and the risk of
prejudice resulting from them, were no longer the same, ruled
Thomas.
Furthermore, he found that the public is now aware that airports
that are not well established offer incentives to encourage
carriers to use their facilities, following an EU ruling on an
agreement between Ryanair and South Charleroi Airport, which
highlighted the issue.
For all these reasons, said Thomas, the exemption did not
apply.
Confidentiality
The question for the Commissioner in this instance was whether
the Council owed an express duty of confidence to Ryanair.
He considered an email sent on 2nd February 2005 from Ryanair to
the Council stating:
“Our contract with Derry Airport is confidential and contains
commercially sensitive information .The information should
therefore not be disclosed under the FOI Act.”
But this showed only Ryanair’s view as to confidentiality at the
time of the email. It did not create an express duty of confidence,
ruled Thomas.
Nor did the initial non-disclosure provision found in the
agreement apply – since the fact that the airline flies out of
Derry Airport has been in the public domain since 1999. In fact the
Commissioner found nothing in the agreement, or in the
correspondence leading up to the agreement, that would create an
express duty of non-disclosure on the part of the Council.
The confidentiality exemption therefore did not apply.
Commercial prejudice
According to the Commissioner, the risk of prejudice had to be
assessed at the time of making the request.
While he was satisfied that the operation of a regional airport
by a public authority is a commercial activity, he found that the
Council had not shown how disclosing an agreement negotiated in
1998 would or would be likely to cause prejudice now.
The commercial interests of the Council were quite different at
the time of the request to those at the time it was negotiating the
agreement, and some of the details had already been made public.
Even if the disclosure could prejudice the Council by damaging its
business reputation, the Council had not shown that its reputation
would be damaged, added Thomas, finding that this last exemption
did not apply either.
He ordered the Council to release the requested information
within 30 days.
According to Louise Townsend, a freedom of information law
specialist with Pinsent Masons, the law firm behind OUT-LAW.COM,
the ruling could have wider commercial implications.
"Public authorities can no longer hide
behind blanket confidentiality obligations in contracts and
contractors can no longer expect them to. Contractors should
consider what information they give to the public sector, from
tender stage through to post-completion, and how this will be
protected. Public authorities are being advised to amend standard
confidentiality clauses and contractors must recognise that the
onus is on them to justify why their information should not be
disclosed. Not even financial information will always warrant
protection."
