Access All Areas

Originally published 21 April 2005

The Freedom of Information Act 2000 (FOIA) finally came into force in January this year giving individuals a statutory right to see huge amounts of information held by government departments and public bodies. In the first month alone 4000 requests for information were made. Although the majority of these so far will have come from members of the public in other jurisdictions it has been found that over time access legislation is used extensively by businesses. Therefore the Act also affects businesses in sectors which have a high level of interface with public authorities such as construction.

Unlike the Data Protection Act 1998 which has traditionally provided individuals with a right of access to information held about themselves, the FOIA extends this right to cover information held about third parties as well as any other information that may be held by the public authority.

Under the regime, anyone of any nationality, and living anywhere in the world, can make a request for information. Any recorded information that is held by a public authority, including paper records, emails, hand written notes etc can be requested. The Act requires the request to be in writing and met within 20 working days. However the authority may extend this timeframe to a reasonable time where consideration of the public interest is required.

Previously local authorities tended to conduct confidential tendering exercises when procuring contracts. However with the advent of the FOIA information not just about the successful tenderer but also the unsuccessful ones may become available after the tender process has closed.

The FOIA could be used by a construction company to gain competitive advantage over its rivals by asking for a raft of information ranging from the prices and rates submitted by a competitor in a previous bid to complaints about performance and health and safety records. It can also include the reason that a bidder was accepted which could in turn form the basis of a legal challenge if there is evidence of unfairness.

Public authorities do have the option to refuse a request by relying on one of a number of exemptions. The exemptions relate to issues such as national security, law enforcement, commercial interests, and data protection. In particular, information is exempt if it is accessible to the applicant by other means, for example available on a publication scheme. There are broadly two general categories of exemption: those where, even though an exemption exists, an authority has a duty to consider whether disclosure is required in the public interest (qualified), and those where there is no duty to consider the public interest (absolute). The public interest test requires an authority to determine whether the public interest in withholding the exempt information outweighs the public interest in releasing it.

Public authorities can also refuse a request if finding and extracting the information would exceed the appropriate limit set out in the Fees Regulations. The appropriate limit is set at £450 for local authorities and £600 for central government departments. Neither are authorities required to create information they don’t have in order to respond to a request. These limits do not apply if the information is "environmental information" within the Access to Environmental Information Regulations which provide somewhat different rules for this type of information.

If a construction company is unhappy that information about its competitors is unjustly being withheld it can make a formal complaint to the authority. However there is no statutory obligation under the Act for authorities to provide a complaints process. They can also appeal to the Information Commissioner who has the power to instruct authorities to disclose information. In practice, this will mean deciding whether exemptions have been properly applied by authorities and, in most cases, that the public interest in disclosure is fully considered. A public body risks contempt of court if it ignores a formal Decision issued by the Information Commissioner.

The FOIA opens up both opportunities and dangers for any construction business that deals with local authorities. In consultation with an advisor businesses should make provision for any information which they deem to be sensitive. They should study very carefully all documents they supply to public authorities and include provision for the authority to inform them before any information about their business is released into the public domain.

In most instances significant information about a business or its competitors will be protected from disclosure but not in all cases. It is important that business take the necessary steps to assess and manage the risks when dealing with public authorities.

In some limited cases private sector bodies, such as utility companies, can be subject to rights of access if they hold environmental information. Businesses should review their position carefully if they think that they might fall into this category.

Greater transparency within the public sector , particularly in its relationships with the private sector, will be welcomed by many. But at what cost? Only time will tell if the construction industry feels that the benefits outweigh the risks!