Information Commissioner's Office - Guidance on confidentiality and the public procurement regime

The Information Commissioner’s Office has recently issued guidance on the interplay between the Freedom of Information Act (“FOIA”) and Environmental Information Regulations, on the one hand, and the Public Contract Regulations 2006 (“Regulations”) on the other. 

The Regulations set out the procedures that must be followed when certain public sector contracts are offered for tender.  The guidance will assist public authorities to fully understand their obligations and promote good practice when faced with a request to disclose confidential information provided by a bidder as part of a tender process.  There are also lessons for businesses in ensuring that commercially sensitive information submitted as part of a tendering process remains confidential.

The key points are as follows:

• Regulation 43 of the Regulations provides that information forwarded to a public authority by a contractor during a procurement exercise shall not be disclosed, so long as the bidder has forwarded the information and it has been “reasonably designated as confidential”.  Information that has been mutually agreed as part of a contract is not protected under Regulation 43.  Bidders must take the initiative and identify the information they wish to remain confidential, and the designation must be reasonable.  This means that it is confidential under a common law duty of confidence and does not last indefinitely.  
• Section 44 FOIA provides that information may not be disclosed following a request if its disclosure is prohibited by another enactment.    This means that information qualifying for protection under Regulation 43 will be automatically exempt from disclosure under section 44 FOIA.
• Section 43 FOIA provides that information may not be disclosed following a request if it qualifies as disclosure likely to prejudice someone’s commercial interests.  However, the exemption under section 43 FOIA is potentially wider than Regulation 43 protected information.  Regulation 43 only protects information forwarded by the bidder whereas section 43 FOIA may apply to information that has been jointly agreed between the two parties and the public authority’s own information.

The interaction between the FOIA and the Regulations is not straightforward, but public authorities and businesses need to be able to understand the basis on which disclosure can be refused.

For more information please contact Beverley Flynn.