The question going through the minds of many who deal with the public sector
is no doubt what impact FOI will have on their contracts. What information
that can be disclosed to the public, and how can such disclosure can be manage?

Help is at hand in the form of the Scottish Procurement Directorate's guidance
on the interplay between the Freedom of Information (Scotland) Act 2002 and
procurement. The guidance advises that at the start of any procurement process,
the guidance public bodies must inform potential bidders of the implications
of the Act, the thrust being that certain information provided to that public
body may have to be disclosed to the public. Nevertheless, emphasis is also
placed on public bodies trying to “recognise the bidder’s legitimate commercial
concerns”, and that “the conditions of procurement should encourage bidders
to identify information that is truly sensitive”.

In determining what information fits that criteria, the bidder must have
a sound understanding of the Act’s exemptions. Relevant exemptions include
the commercial interest exemption (which enables information to be withheld
if it would, or would be likely to, prejudice substantially the commercial
interests of a person, business or public bodies), and the confidentiality
exemption (which enables information to be lawfully withheld if its disclosure
would result in an actionable breach of confidence). In both instances however,
even if the exemption is engaged, the information may still be disclosed if
the public interest in disclosing the information is



Business and public bodies should take time to become familiar with this
guidance, and reflect on the scope of information that could be released
to the public and competitors under FOI. It is through the considered application
of these measures that the release of potentially damaging information may
be prevented.

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