Confidential IT contracts may have to be disclosed - Information Tribunal decision under FoI

A tribunal ruling under the Freedom of Information Act means that public sector contracts may have to be disclosed in some circumstances no matter how confidential the content.

It’s interesting that a number of rulings of the Information Tribunal put the public interest in disclosure above the arguments of public authorities against disclosure.

The Information Tribunal says:

“We are aware that the effect of our conclusion is that the whole of any contract with a public authority may be available to the public, no matter how confidential the content or how clearly expressed the confidentiality provisions incorporated in it, unless another exemption applies (most probably, that one or both parties to the contract could show that its disclosure would be likely to prejudice its commercial interests, so as to bring section 43 into play). “

Full details of the Tribunal decision are (see Derry City Council v Information Commissioner) here.

Public authorities including the Office of Government Commerce, the Department of Health, the Department for Work and Pensions and the Cabinet Office, have rejected applications made by Computer Weekly under the FOIA, in part because of exemptions they believe have more force in law than the public interest in favour of disclosure. Some of the tribunal’s decisions suggest that it may see things differently – that the public interest in favour of publication will sometimes over-ride the exemptions.

The tribunal is the penultimate step in the appeals process under the Freedom of Information Act. The applicant makes a request under the Act to a public authority; when it is turned down, the applicant may appeal to the authority, then to the Information Commissioner. If the Commissioner rules in the applicant’s favour, the public authority may then go to a tribunal. A decision of the tribunal stands unless a minister steps in.

The decision of the Tribunal over public sector contracts was drawn to my attention by Stephen Castell an expert witness in IT disputes. He quotes the Tribunal’s decision as succinctly explained by Alistair Mann of legal firm Bristows:

“This decision highlights the dangers of assuming that a document marked “Private and Confidential” will not be disclosed under FOIA [Freedom of Information Act].

“Those contracting with public authorities should bear in mind that, on the basis of this decision, their contracts with the authorities will not generally be treated as confidential for the purpose of FOIA “no matter how confidential the content or how clearly expressed the confidentiality provisions incorporated in it”.

“Authorities may still refuse to disclose financial and other commercially sensitive information included in a concluded contract on the grounds of likely harm to commercial interests. However, that exemption is a qualified exemption, meaning that a competing public interest could still override a contractor’s interests. ”

Further details of the decision on the Bristows website (see entry number 4) – here

Stephen Castell’s websites: