Line to take - LTT55 - Evidence from third parties

• FOI/EIR: FOI
• Section/Regulation: s43
• Issue: Evidence from third parties
• Source: Information Tribunal
• Details: Derry City Council / Hutton (11 December 2006); Keene / Central Office of Information (14 September 2009)
• Related Lines to Take: n/a
• Related Documents: EA/2006/0014, FS50066753, e-mail Boris Wojitan to FOI 13/12/06, Awareness Guidance 5, EA/2008/0097 (Keene)
• Contact: LA/HD
• Date: 18/11/2010
• Policy Reference: LTT55
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

When considering prejudice to a third parties commercial interests, it will not be sufficient for the public authority to speculate about prejudice that may be caused, rather arguments originating from the third party itself will need to be considered.

Further Information

In Derry City Council v ICO, Derry City Council claimed that section 43 applied as releasing the requested information would prejudice the commercial interests of both itself and a third party, Ryanair.

Ryanair were not represented at the Tribunal nor were they joined to the proceedings.

The Commissioner had considered arguments put forward by Derry City Council in support of its assertion that Ryanair’s commercial interests would be prejudiced by the release of the requested information. However it was accepted at the Tribunal that these were the Council’s own thoughts on the matter and were not representations made to the Council by Ryanair.

The Tribunal did not take the commercial interests of Ryanair into account in reaching its decision commenting that:

Although, therefore, we can imagine that an airline might well have good reasons to fear that the disclosure if its commercial contracts might prejudice its commercial interests, we are not prepared to speculate whether those fears may have any justification in relation to the specific facts of this case. In the absence of any evidence on the point, therefore, we are unable to conclude that Ryanair’s commercial interests would be likely to be prejudiced.

It could be taken from this that when considering prejudice to a third party’s commercial interests only arguments provided by the third party itself in relation to the request should be taken into account and any arguments formulated by the public authority should be disregarded.

However the Commissioner considers that whilst this approach was appropriate in the particular circumstances of the Derry case, in other cases it may be that, due to time constraints for responding to requests, arguments are formulated and argued by a public authority, based on its prior knowledge of the third party’s concerns. The Commissioner accepts that these may be valid arguments and that where a public authority can provide evidence that they genuinely originate reflect the concerns of the third party involved then they may be taken into account.

If it is established that a third party does not itself have any arguments or concerns about prejudice to its commercial interests, then any speculative arguments put forward by a public authority should clearly not be taken into account.

In any case it will be necessary to establish the source of and evidence for any arguments about the prejudice to the commercial interests of a third party and to weight them accordingly.

The Derry approach has also been followed by a differently constituted Tribunal in the case of Keene v ICO & the Central Office of Information (COI) in which arguments were put forward by two witnesses on behalf of the COI that it would prejudice the commercial interests of the companies who submitted bids in a tendering exercise to secure a reprographics contact to disclose the COI's evaluation of those bids. The Tribunal said "...that none of the businesses which submitted tenders are parties to this appeal, and there is no evidence before us from any of them as to whether they would suffer any prejudice, much less as to what prejudice they would suffer" (para 39).