PL&B FOI E-news, Issue 38

1. New FoI guidance on releasing procurement information

On 20 November, the Ministry of Justice published guidance on how public authorities should deal with FOI requests, or requests under the Environmental Information Regulations, in the different phases of the procurement process, and in the period immediately after a contract has been completed.

Whether procurement information from commercial suppliers should be released depends on what kind of information it is, and in what phase of the procurement process the information is requested.

The guidance provides working assumptions on disclosure for five broad categories of information:

  1. General procurement information
  2. Initiation information (the start of procurement planning up to readiness to issue bid documentation)
  3. Tender information (release of tender documents up to selection of preferred bidder)
  4. Contract negotiation information (successful bidder notified up to contract signature)
  5. Contract delivery information (from start of work to completion).

When fulfilling requests for procurement information, the exemptions on commercial interests and information provided in confidence also play an important part. Does the disclosure:

  • prejudice the ability of departments to achieve value for money?
  • damage the business reputation of or the confidence that suppliers have in a department or a third party?
  • weaken a department's or third party's position in a competitive environment?
  • reveal the financial position of a third party in a way that is detrimental to its commercial interests?

2. ICO publishes FoI guidance on how to deal with requests which relate to individuals’ personal information

The Information Commissioner’s Office (ICO) published, on 11 November, new common sense guidance for freedom of information practitioners on how to deal with requests under the Freedom of Information Act (FOIA) and the Environmental Information Regulations (EIR) which relate to individuals’ personal information.

The guidance stresses that information in not automatically exempt if it includes personal data. The guidance paper provides step-by-step advice on the application of the personal data exemption, using examples from the freedom of information ruling that led to the disclosure of details of MPs’ expenses.

In this case, it was necessary to disclose some personal information belonging to MPs in order to address the inadequacies of the expenses system. The guidance includes an easy-to-use flow chart to assist FOI practitioners.

3. Vehicle and Operator Services Agency to release information about non-safety recalls not affecting the commercial interests of manufacturers

The Information Commissioner ruled on 23 October that the Vehicle and Operator Services Agency (VOSA) must publish the details of 22 non-safety recalls recorded in 2006. The ICO says that the release of the information does not affect the commercial interests of manufacturers.

VOSA had previously agreed to release information relating to two elements of the request which included the details of 44 vehicle recalls registered in 2006. VOSA also disclosed details on the response rates for the number of vehicles recalled from September 2002 to March 2006 after wrongly stating that gathering the requested information would exceed the cost limit. The ICO made it clear to VOSA that responding to the freedom of information request fell within the cost limit.

However, with regard to the non-safety recalls, VOSA argued that disclosure of this information would breach the confidentiality of the relevant vehicle manufacturers and would be likely to prejudice their commercial interests.

In her ruling, the Assistant Information Commissioner, Anne Jones, noted that manufacturers inform vehicle owners when there has been a non-safety recall as a way of preventing the issue developing into a safety related incident. As a result, the details of non-safety recalls were made available to thousands of owners and there is no evidence to suggest that vehicle owners are under a duty of confidentiality relating to this information.

Jones said that VOSA could avoid misinterpretation of the information by providing an appropriate explanation of its context. She argued that manufacturers would continue to provide details of non-safety recalls on a voluntary basis, as it is in the best interest of manufacturers to keep vehicle owners informed of non-safety recalls.

See the full Decision Notice.

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