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One of the most commonly relied-upon exemptions from disclosure is
information relating to ‘commercial interests’ (s43). This exempts
information from disclosure if it constitutes a trade secret, or if its
disclosure would be likely to prejudice the commercial interests of any
individual or legal person.
But, it is important to note that the exemption
is qualified, and so the information will only be exempt if the public
interest in withholding it outweighs the public interest in disclosing it (ie
the public interest test).
What has emerged from the reported cases is that the timing of the
request can be crucial. For instance, a request was made for information
about the relocation of a medical practice. This involved a deal between
the primary care trust and a private developer, and the question then
arose as to whether the heads of terms between the practice and the
developer should be disclosed. The Information Commissioner focused
on the date the request was made; at that time, the medical practice
could still have withdrawn from the project and started negotiations with
another developer. That being so, the information relating to rent, rent
reviews, repairs terms, and costs incurred would be commercially
sensitive. Disclosure could disadvantage the developer (as well as the
practice). That prejudice meant that the basic test was satisfied, and so
the Commissioner went on to consider the public interest test. In
applying the public interest test, he acknowledged that there was a
general public interest in allowing fair competition, but there was also a
very strong public interest in knowing the amount of public money being
spent (and whether public authorities were getting value for money). But,
concerns over disclosure of commercially sensitive information before
the conclusion of negotiations could hinder their successful completion
and that would also be contrary to the public interest. On balance, at the
time of the request, the public interest in efficient procurement
outweighed the interest in transparency and so the information should not be disclosed. But, the position with regards to disclosure could well
have been different once the negotiations had been concluded.
The point to appreciate, therefore, is that information may be sensitive
at one time, but not at a later time. Once the negotiations have been
completed and a contract signed, then the public interest in transparent
procurement is likely to override other concerns. Farndon Green Medical
Centre [2006] 17 EG 112.
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