The two UK Freedom of Information Acts both came into force on 1 January, 2005.
In Scotland, the relevant Act is the Freedom of Information (Scotland) Act
2002 which gives the general public a right of access to all recorded information
of any age held by Scottish public authorities covered by the Act, within 20
working days of request.
Public authorities include central and local government, executive agencies,
the NHS, the police, colleges and universities, as well as companies wholly
owned by these public authorities
The private sector may be affected by the introduction of the FOI regime in
a number of ways:
- Any information handed over to a public authority in future may be made
available to the public as a result of an FOI request. Private businesses
that contract or deal with the public sector, and on which the public sector
holds information, could find that details of their contracts may be released
to the public, without notice or warning. - The Act has retrospective effect and therefore contracts agreed with,
or business information provided to public authorities prior to 1 January
2005 may also require to be disclosed to the public. - It is possible that private companies could in future be designated as
public bodies for the purposes of the Act to the extent that they carry out
public functions, and so may be faced directly with FOI requests.
There are however exemptions in the Act which prescribe the circumstances
in which information may lawfully be withheld by public bodies, although there
is no obligation to do so.
For businesses, the two most important exemptions are likely to be the "prejudice
to commercial interest" exemption, which allows trade secrets or commercially
sensitive information to be exempt from disclosure (unless the public body
takes the view that it is in the public interest to release the information)
and the "in confidence" exemption, where disclosure of the information
must lead to an actionable breach of confidence, meaning that the information
must have been of a genuinely confidential nature, imparted in circumstances
imposing a duty of confidence, and it must have been used without authorisation.
There is an inherent public interest test in the law of confidence already.
On the plus side, businesses will now be able to access significantly more
information than has been possible in the past. Businesses everywhere will
now be able to access information about their competitors. In the US where
a similar FOI regime has been in operation for years, over 65% of FOI requests
are made by businesses to gain a competitive edge.
For further information or assistance on FOI matters, contact Hazel Moffat or Catherine Tracey of
Shepherd+ Wedderburn's Public Law Group who can advise on all aspects of the
Freedom of Information (Scotland) Act 2002 and the UK Freedom of Information
Act 2000, and who specialise in developing internal information management
processes to assist public authorities in complying with new obligations, developing
risk management strategies for companies and businesses, and auditing disclosure,
procurement and information management processes to identify and minimise areas
of risk.
In Scotland, the Scottish Information Commissioner is responsible for ensuring
that people are aware of their right to access information under the Act and
for enforcing this right to make sure that people get the information to which
they are entitled. The Commissioner's website, where further information can
be obtained is at http://www.itspublicknowledge.info/
