Line to take - LTT24 - Public Contract Regulations

• FOI/EIR: FOI
• Section/Regulation: s44
• Issue: Public Contract Regulations
• Source: Legal Advice
• Details: Provided 03/08/2006
• Related Lines to Take: n/a
• Related Documents: ENO0110827, Awareness Guidance 2 (confidence), Awareness Guidance 27 (prohibitions on disclosure)
• Contact: AB
• Date: 17/11/2006
• Policy Reference: LTT24
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Regulation 43 of the Public Contract Regulations 2006 prohibits the disclosure of information to which it applies and therefore acts as a statutory bar under s44 of FOIA 2000 but not in relation to environmental information under the EIR.

Further Information

Regulation 43 of the Public Contract Regulations 2006 provides:

“(1) Subject to the provisions of these Regulations, a contracting authority shall not disclose information forwarded to it by an economic operator which the economic operator has reasonably designated as confidential.

(2) In this regulation, confidential information includes technical or trade secrets and the confidential aspects of tenders.”

In order for information to fall within regulation 43 it must therefore:

1. be forwarded to the public authority by the tenderer and

2. be reasonably designated by the tenderer as being confidential.

The inclusion of the word “reasonably” in Regulation 43 means that the tenderer cannot simply designate anything it chooses as confidential. There must be some legitimacy to this claim of confidentiality.

The Regulations do not define “reasonably” and therefore it is necessary to look at Directive 2004/18/EC, on which the regulations are based, for guidance as to the intention behind Regulation 43.

The presence of the words “in accordance with the law” in Article 6 of the Directive, from which Regulation 43 is derived, suggests that the way in which confidentiality should be determined in these circumstances is by reference to national law to which the contracting authority is subject.

It is therefore necessary to apply the law of confidence in order to determine whether the information is within scope of the regulation. Guidance on the application of the law of confidence is provided by Awareness Guidance 2.

In brief it will be necessary to establish:

1. that the information was imparted in confidential circumstances - this will virtually always be met as the information has to be forwarded to the public authority by the tenderer and reasonably designated as being confidential in order to come within Regulation 43 in the first place

2. whether the information has the necessary quality of confidence

3. whether there is some overriding public interest (under the law of confidence not FOIA) which negates the duty of confidence.

It is possible that information that is not subject to a duty of confidence under the law, and therefore not subject to the statutory bar, might be commercially sensitive and subject to the exemption in section 43 of FOIA. This might happen if it is the public authority’s own information in connection with the procurement that is being requested.

Environmental information

In relation to environmental information, for the information to be exempt from disclosure one of the exceptions under the EIR must be applicable. Regulation 43 of the Public Contract Regulations will not operate as a statutory bar due to the effect of regulation 5(6) of the EIR. This provides that any enactment or rule of law that would prevent the disclosure of information in accordance with the EIR will not apply.

If the requested information falls within the scope of regulation 43 of the Public Contract Regulations it must be subject to a duty of confidence. It is, therefore, extremely likely that the exception in 12(5)(e) of the EIR will apply. Regulation 12(5)(e) only relates to information in respect of which the law of confidence protects a “legitimate economic interest”, so, for example, personal confidences would be excluded. However, it is hard to imagine how anything other than ‘economic’ information, such as that relating to financial, contractual or commercial matters, would come within the scope of the Public Contract Regulations.