This is illustrated by a recent decision of the Information Commissioner concerning a PFI project for a medical centre. The Information Commissioner emphasised that the disclosure of commercially sensitive information before the negotiations had concluded could hinder the successful completion of negotiations and would be against the public interest. Accordingly, while there is still room to renegotiate the deal, or to finalise the terms, it seems unlikely that disclosure will be ordered. On the other hand, once the deal has been concluded, it follows that more information is likely to be discloseable so as to allow public scrutiny of the way in which public funds are spent. Thus, the balance is likely to shift in favour of disclosure after completion of a transaction (although there may well be other commercially sensitive information that is protected from disclosure even after completion).

The real point for private sector contractors to appreciate is that there is no obligation on a public authority to consult with the private contractor before agreeing to (or refusing) an FOIA request. Although many do consult as a matter of good practice, there is no guarantee that they will do so. Accordingly, if you enter into negotiations with a public authority, you should think carefully about what sort of information you are handing over and then try to protect it with appropriate confidentiality agreements. As an additional precaution, consider carrying out the negotiations with third parties without directly involving the public authority, so that it will not hold any disclosable information. Source: Allen & Overy. © Practical Lawyer