The Information Commissioner for the UK—and the Information Tribunal, the appeals body for which there is no Scottish equivalent—have recently considered the exemption in s. 43(2) of the UK Act. This provision is similar to s. 33(1)(b) of the Scottish Act, and exempts information which would substantially prejudice the commercial interests of any person from disclosure, subject to application of the public interest test.
In Derry City Council, the Information Commissioner considered whether details of a contract between the Council and Ryanair for use of Derry airport, and the amount paid by Ryanair for this use, should be released. The Council argued that its commercial interests would be prejudiced by disclosure, since it would affect its bargaining position when negotiating contracts with other airlines, something that it needed to protect as it was trying to expand the airport.
However, the Commissioner stated that the risk of prejudice must be established at the time when the request is made. The contract with Ryanair had been concluded some 6 years previously, at a time when the Council was seeking to attract airlines to the new airport, whereas now the airport was well-established. The Council's commercial interests had changed as a result, and would not be prejudiced by release of the requested information.
This case also considered whether a claim to confidentiality pursuant to section 41 of the UK Act (the equivalent of section 36(2) of the Scottish Act) could apply to the contract itself. Interestingly, the UK Information Commissioner held that as the contract itself did not stipulate any form of confidentiality, the parties could not seek to rely on this exemption. Further, it was held that this exemption could not apply as the contract itself was not information received from Ryanair by the Council.
Similarly, in John Connor Press Associates Limited, which was an appeal to the Information Tribunal of the Information Commissioner's decision in National Maritime Museum, the commercial interests exemption was found not to apply by reason of the time that had elapsed.
National Maritime Museums had contracted with an artist to provide an exhibition on its premises. When a request was received for details of this contract and the price paid, the museum refused to disclose on the ground that it was currently negotiating a similar exhibition with a second artist, and its negotiating position would be prejudiced if the information requested became public.
However, the Tribunal found that the Museum had not established the likelihood of prejudice. In this context, "likely" must be taken to mean more than a hypothetical or remote possibility. The fact that the Museum had already released some of the information requested (with financial details redacted) reduced the importance of the information withheld, such that it did not meet the threshold of being "likely" to cause their commercial interests substantial prejudice. Further, the artwork to be commissioned from the second artist was not similar enough to that of the first artist for the release of the information to affect the Museum's bargaining position.
The main points to be learned from these decisions are that information will most likely have to be current or very recent to be exempt under s. 43(2), and that there is a high threshold to be met in determining that prejudice to commercial interests is likely to flow from disclosure.