Freedom of Information

Freedom of Information

FoI and the Commercial Interest Exemption. Laura Gillespie discusses the Ryanair decision.

Freedom of Information

On 11 December 2006, the Information Tribunal ("the Tribunal") confirmed that Heads of Agreement which had been submitted by Ryanair to Derry City Council ("the Council") regarding Ryanair's use of the City of Derry Airport ("the Airport") should be disclosed and the "commercial interest" exemption, contained with the Freedom of Information Act 2000 ("the Act") would not prevent that disclosure.

The Act has been in force for over two years now. Whilst the ramifications and implications of the Act are still being tested, one area which has been the subject of concern amongst businesses is the possibility that commercially sensitive information contained within tenders and submissions made to public authorities may be released into the public domain if a request for information is made pursuant to the Act.

The general premise of Act is that when a person makes a request for information to a public authority, that person is entitled to:

• be informed whether the public authority holds that information and, if that is the case;
• to have the information communicated to them.

In practice, this will mean that copies of documents will be provided. However, there are a number of exemptions to the general presumption, one being the "commercial interest" exemption.

Commercial Interest

The Act states that information will be exempt from disclosure if:

• its disclosure would, or would be likely to, prejudice the commercial interest of any person; and
• the public interest in withholding the information outweighs the public interest in disclosing it.

The decision as to whether the exemption will apply rests with the public authority. There is no obligation to consult with any business to which the information relates.

Ryanair

In January 2005, information was requested from the Council relating to how much Ryanair paid the Council for the use of facilities at the Airport. The majority of the information was contained within a letter dated 25 March, 1999 which was marked "private and confidential". The Council refused to provide the information citing the commercial interests exemption and as a result, the complainant referred the matter to the Information Commissioner. The Commissioner stated that whilst he accepted that the information concerned a commercial activity, the information was not commercially sensitive because whilst the Council may have been motivated by factors designed to encourage investment in the region when negotiating the Heads of Agreement, the Council had not demonstrated that those interests would be prejudiced as a result of the release of the Heads of Agreement at the date of request in 2005.

The Tribunal

The Council appealed to the Tribunal where the decision of the Commissioner was upheld. The Tribunal found that whilst the information sought would impact on the commercial interests of the Council, it was in the public interest that the information be disclosed. The airport had been making financial losses and the Tribunal held that to disclose the information would open up financial accountability and transparency of the management of the airport. It was therefore decided that the risk of prejudice to the Council's commercial interests by the time the request was made (almost eight years after the Heads of Agreement were drawn up), was not sufficient to outweigh the public interest in having the information disclosed.

Following the decision of the Commissioner and the Tribunal, public authorities may apply the commercial interest exemption to commercial information obtained from private businesses whilst negotiation is ongoing. The same cannot be said once that negotiation has been completed. Businesses may well find that their commercial information is available in the public domain.

Laura Gillespie is an Associate in the firm's Litigation Department advising on a range of commercial matters including freedom of information and data protection.

Laura can be contacted at laura.gillespie@lestrangeandbrett.com

Quote: not sufficient to outweigh the public interest