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Dr FOI's Postbag - September 2007
Dear Dr FOI
How do I decide what parts of a contract we hold with a private sector contractor are disclosable under FOI and EIR? Where is there some good guidance?
Dear Colleague,
The first step is to consult the contractor, explaining that under FOI and EIR there is a general presumption in favour of disclosing contractual information once the contract has been awarded. Ask the contractor to identify any specific information in the contract which they believe should not be disclosed at the present time; ask them to explain why disclosure would be detrimental to their commercial or other interests; and ask them to confirm when it will become possible to disclose the identified information.
Most contractors will wish to be helpful and will seek to identify the genuinely commercially sensitive information. Some contractors, however, may need to be reminded that the words ‘commercial-in-confidence’ printed all over a contract do not constitute an obligation on the public authority to withhold the information in response to a request under FOI/EIR!
You should not automatically accept the contractor’s view on what parts of a contract are disclosable. You need to use your own judgement and consider whether any of the identified information is legally exempt from disclosure. You should also take account of the public authority’s own commercial interests. The most relevant exemptions to consider are Sections 41 (information provided in confidence) and 43 (commercial interests) of the FOI Act and Regulation 12(5)(e) of the EIR.
In general terms, contractual information is exempt only if its disclosure would be likely to cause real or significant harm to the contractor’s or the authority’s competitive position in the marketplace at the time the information is being considered for disclosure. This can be a difficult judgement call and you should consider seeking advice from colleagues as well as consulting the available guidance.
The Office of Government Commerce has produced detailed guidance on how requests for procurement-related information should be handled. The annex sets out in tabular form a series of ‘working assumption’ decisions governing the disclosure of different types of procurement-related information, including information held in contracts.
http://www.ogc.gov.uk/documents/FOI.pdf
Similar guidance on handling requests for procurement-related information is available on the DCA’s FOI website:
http://www.foi.gov.uk/guidance/exguide/procurement.pdf
There is detailed guidance on the EIR exceptions, including the exception relating to commercial interests, on the Defra website:
http://www.defra.gov.uk/corporate/opengov/eir/guidance/exceptions.htm
Link to detailed guidance on individual FOI Act exemptions:
http://www.foi.gov.uk/guidance/exguide/index.htm
Dear Dr FOI
What are the Re-Use of Public Sector Information Regulations and how do these apply to my organisation? Can you give me an example of how this would work in practice?
Dear Colleague,
The Re-use of Public Sector Information Regulations (‘PSI Regulations’) came into force on 1st July 2005 and implement a European Directive of the same name. The Office of Public Sector Information (OPSI) is responsible for implementation of the PSI Regulations, which apply to most public authorities in the UK, including Parliament, Ministers, government departments and agencies, local authorities, the NHS, police and fire services, but excluding public service broadcasters, cultural establishments (such as museums and libraries) and educational and research establishments (such as schools and universities).
The purpose of the PSI Regulations is to encourage the commercial re-use of public sector information by introducing streamlined processes, increasing openness and transparency, and removing some of the barriers to re-use. The term ‘re-use’ covers any use by a person of information held by a public authority for a purpose other than the initial purpose for which the information was created by that authority, for example copying, adapting, broadcasting, commercial publication or sale of public sector information in the context of value-added products and services.
The PSI Regulations take Freedom of Information (FOI) on to the next stage. While FOI is about access to public sector information, the PSI Regulations are about how the information can be re-used. When an applicant obtains information by means of an FOI request they do not automatically have a right to re-use the information. Information generally remains subject to copyright and re-use requires permission from the copyright holder.
Anyone can submit a request to a public authority for re-use of information. The request must be in writing, must state the name of the applicant and an address for correspondence, must specify the document or information requested, and (unlike requests under the FOI Act) must state the purpose for which the information is to be re-used.
Public authorities must respond to requests for re-use within 20 working days, but this deadline can be extended in certain circumstances. Responding to a request for re-use means either refusing the request, or making the requested information available to the applicant for re-use, or, where conditions are to be imposed on re-use, finalising the offer to the applicant of the conditions on which re-use will be permitted. If a request for re-use is refused, the public authority must notify the applicant of the reason for refusal. If the reason for refusal is because the public authority does not hold the copyright in the requested information, the authority must identify, where known, the name of the person (or body) that owns the relevant intellectual property rights or the name of the person (or body) from whom the authority obtained the information.
Public authorities are required to be open about the conditions of re-use, for example by publishing standard licence terms. Many public authorities have met this requirement by placing standard notices on their websites and in their publications to the effect that their material can be freely re-used provided that copyright is acknowledged and the source of the material is identified. Where charges are to be made authorities must publish details of what those charges will be or the basis on which they are to be calculated.
Public authorities are also required to publish a list of the main documents available for re-use and details of the means of redress available to an applicant. Some public authorities have simply amended their FOI publication scheme or Information Asset Register for this purpose.
OPSI has introduced a ‘Click-Use’ online licensing system for the re-use of certain Crown and Parliamentary copyright information and other public sector information. But many public authorities receive so few requests for re-use of information that they find it easier to deal with such requests on an ad hoc basis rather than use a formal licensing system.
Examples of how the PSI Regulations work in practice:
1) A local authority decides that most of its published information can be freely re-used (subject to appropriate acknowledgement of copyright) and places a standard notice on its website to this effect. But the authority also wishes to charge for the re-use of some of the more commercial material, so it publishes a list of these information assets on its website, together with the licence terms and schedule of charges.
2) A public authority receives an application for re-use of information. The applicant wishes to reproduce and circulate copies of one of the authority’s publications, a glossy illustrated booklet about National Parks. As it is a priced publication and expensive to produce, the authority refuses the request on the grounds that the publication has commercial value and the authority needs to recoup a proportion of the production costs by making a reasonable charge for each copy. The refusal letter includes details of the authority’s internal complaints procedure.
3) A public authority receives a request for information under the FOI Act. The request is for a list of all staff names, job titles and email addresses. The authority agrees to release the information but explains in the covering letter that the information is protected by copyright and that if the applicant wishes to make any commercial use of the information, for example by copying or circulating the information, they will need to apply to the authority for a licence under the PSI Regulations.
For more information and guidance, go to the OPSI website:
http://www.opsi.gov.uk/advice/psi-regulations/index.htm
Link to the text of the PSI Regulations: http://www.opsi.gov.uk/si/si2005/20051515.htm
Dear Dr FOI
I understand that there are some useful template letters available to use in respect of FOI requests. I can’t find them on the Information Commissioner’s web site; do you know where can I find these?
Dear Colleague
The Department for Constitutional Affairs has merged to form the Ministry of Justice. The old DCA website still has an archive of information for practitioners, including template letters:
1 Acknowledgement letter
2 Reasonably accessible
3 Further information required
4 Fees Notice – Over the appropriate limit and charging under section 13
5 Fees Notice – under the appropriate limit
6 Fee Received
7 Fees – non payment
8 Informs applicant that the request exceeds the appropriate limit and is not being processed further
9 Extension of time – public interest test
10 Consultation with third parties
11 Three variants needed -Provides applicant with all of the information requested
12 Informs applicant all information sought is being withheld
13 Three variants needed -informs applicant some information sought is being withheld, some provided
14 Neither confirm nor deny
15 Informs applicant information not held
16 Informs applicant request being transferred to another public authority
Visit the link below to see the suggested templates-these are very useful and highly recommended, if you haven’t seen them before:
http://www.dca.gov.uk/foi/FOI_standardparas.pdf
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