Line to take - LTT161 - Public interest factors for regulation 12(5)(e)

• FOI/EIR: EIR
• Section/Regulation: reg 12(5)(e)
• Issue: Public interest factors for regulation 12(5)(e)
• Source: Policy team
• Details: N/A
• Related Lines to Take: LTT96, LTT160
• Related Documents: N/A
• Contact: LS
• Date: 02/12/2009
• Policy Reference: LTT161
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

When weighing up the public interest in maintaining the exception, consideration should be given to the harm that the specific disclosure would cause to legitimate economic interests.

There may also be some wider public interest in preserving the principle of confidentiality. The weight of each will depend on the circumstances.

Further Information

Regulation 12(5)(e) provides:

(5) For the purposes of paragraph 1(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—

(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest

The underlying purpose of the exception is to protect the legitimate economic interest that is being protected by commercial confidentiality. It incorporates elements of both s41 and s43 of the FOIA, although it also differs from those sections in some respects. For more information on the scope of the exception see [[LTT160].

Although the engagement of this exception may in some cases include consideration of the common law of confidence, there is no need to consider the availability of a public interest defence.

Relevant public interest considerations will instead be considered as part of the public interest test under regulation 12(1)(b). When considering the balance of the public interest, it is important to consider both the specific harm that disclosure would cause to the relevant economic interest at stake in the particular case, and whether there is any wider public interest in preserving the principle of confidentiality. However, the initial focus should be on the harm to legitimate economic interests.

Harm to legitimate economic interests

In order for the exception to be engaged the public authority will already need to have established that disclosure would cause some harm to a legitimate economic interest of the relevant person. See LTT160 for more information. It should therefore be straightforward to identify the relevant interests.

The weight to be given to this factor is likely to depend on the extent, severity and/or frequency of the identified harm.

Only harm to the relevant economic interest identified for the engagement of the exception will be relevant here, as the exception only protects confidentiality as far as necessary to protect those interests. Any other arguments (eg relating to personal privacy) will not be relevant for the purposes of this exception.

Public interest in preserving the principle of confidentiality

There will always be some inherent public interest in preserving confidentiality. However, in the context of s41, the Tribunal has rejected comparisons with the strong inbuilt public interest in LPP. Therefore we will not place any significant weight on this generic argument. The approach to “inherent” public interest arguments as set out in LTT96 is helpful here.

Arguments about undermining confidentiality will have more weight when they relate to the specific circumstances of the case. For example, if the authority can demonstrate that this disclosure would undermine its relationship with a particular company, or affect its ability to do business with others, then this should be given more weight than a general assertion that breaching confidentiality will have a harmful effect on trust. To some extent this is also likely to depend on the harm that the specific disclosure would cause, as if the harm caused would be limited it would be more difficult to argue that this would undermine the authority’s relationships.

In the context of regulation 12(5)(e) the Commissioner also considers that the weight of this wider public interest in respecting confidentiality is likely to be affected by the nature of the obligation of confidence. For example, if a duty of confidence has been voluntarily self-imposed on the public authority (eg by contract), this is likely to carry less inherent weight than an obligation of confidence imposed by statute or implied under the common law. In support of this general approach, the Commissioner notes that paragraphs 46 to 53 of the Code of Practice issued under the EIR make clear that a public authority cannot contract out of their obligations under the EIR and should not accept information in confidence unless it is necessary to do so.

Respect for confidentiality imposed on a third party by the public authority is also likely to carry little or no inherent weight. The Commissioner acknowledges that it may be important to preserve trust in public authorities’ ability to treat third party information in confidence, especially if ensuring the free flow of information is important for the authority’s functions. However, public authorities should expect that information they create may need to be disclosed under the EIR, even if they would prefer itto be treated in confidence.

Public interest in disclosure of planning information

Regulation 12(5)(e) is often at issue in requests relating to planning matters. The Commissioner considers that the particular public interest in public participation in planning matters is likely to carry a significant amount of weight in favour of disclosure in such cases. There may of course also be other factors in favour of disclosure, depending on the particular circumstances of the case (eg number of people affected by the proposal, any reasonable suspicion of wrongdoing etc).