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Council could not rely on commercial interests exemption to withhold contract details that were of 'significant age', rules ICO

A local authority in England has been ordered to disclose "the financial benefits" it gets from an advertising contract on the basis that the information it holds would not engage the commercial exemption to freedom of information (FOI) laws.10 Dec 2015

Ruling on an FOI dispute involving Portsmouth City Council, the Information Commissioner's Office (ICO) said the "significant age" of the information that the authority had been asked to disclose meant that disclosure would not or be likely to prejudice the commercial interests of either it or its contractor, Clear Channel.

Under the FOI Act (FOIA) "information is exempt information if its disclosure ... would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it)". Where information can be withheld under that exemption organisations are still obliged to conduct a 'public interest test' to determine whether it is right for information to be disclosed.

Portsmouth City Council had claimed that the information it had been asked to disclose was "current, commercially important, and is not widely known" and that being forced to disclose it would present "a real risk of prejudice to the commercial interests" of both it and Clear Channel. Among its claims it said that disclosure would damage its "negotiating position" in future procurement exercises and cause "significant disadvantage … in an unfair way" to Clear Channel in the outdoor advertising market.

However, the ICO rejected the authority's arguments.

"It is important that any tendering process is carried out on a fair platform and the [ICO] recognises that a disclosure under FOIA should not undermine this process to the detriment of a party, whether that is the public authority or a competitor entering into the tender competition," the ICO's decision notice said. "However, the [ICO] considers that neither the Council’s nor Clear Channel’s arguments have demonstrated a link between the disclosure of the financial benefit information and a prejudice to their commercial interests that is real, actual or of substance."

The ICO said it "seemed unlikely competing contractors would be unduly influenced by what was essentially historical financial information".

"On this analysis, the claim that disclosure would make any forthcoming tendering process unfair is not compelling," it said. "The contract is not due to expire until 2030 and the [ICO] is not convinced that figures which were arrived at in 2007 will be of relevance to a re-negotiated contract over 20 years later. For this reason, the [ICO] has found that there is a lack of basis for arguing that the [commercial interests] exemption is engaged."

In its decision notice (9-page / 116KB PDF) the ICO also suggested that there is compelling public interest argument for disclosure of details of public contracts, even if commercial interests would be prejudiced by that disclosure, where those contracts cover a long period of time.

It said: "With regard to outdoor advertising contracts, the [ICO] stressed the importance of public authorities being as transparent and accountable as possible in relation to contracts entered into with third parties, particularly in the current economic climate and restricted budgets. [It said] … the transparency is even more important where the contract entered into by the public authority is for such a lengthy term."