The Freedom of Information (FOI) Act

The Freedom of Information (FOI) Act covers public authorities, but it can also affect private businesses that contract with the public sector, or provide goods and services to public bodies. 

Your sensitive information shared under a contract may, in this case, be subject to an FOI request. Information that harms commercial interests is exempt from disclosure under section 43 of the FOI Act (a qualified exemption).

What counts as a commercial interest?

Any information affecting your ability to compete, such as pricing, strategies or supplier details, counts as a commercial interest. Before releasing such information, public bodies must check if disclosure would cause real or likely harm to commercial interests. They do this through a test of prejudice.

Prejudice to commercial interests

To claim exemption for prejudice to commercial interests, you must show:

• a specific negative impact from disclosure
• that impact is significant (real, actual or of substance)
• a real possibility (or likelihood) that the harm will occur because of disclosure

Businesses provide evidence during third-party consultation to support the case, but the public body decides if the criteria are met (specific harm, significant impact, real possibility).

Trade secrets and the FOI

Under the FOI Act, trade secrets could potentially be exempt from disclosure. The Act doesn't define the term 'trade secret'. The term can cover, for example, technical information (invention, processes, recipes) and business information (supplier lists, costs, pricing or product development plans, etc).

To constitute a trade secret, information should require the highest level of secrecy and not be: 

• generally known
• widely disseminated
• simply confidential, but confer a competitive advantage to the owner

Section 43 is generally the primary exemption that specifically covers trade secrets, and any information that would prejudice the commercial interest. Section 43 is a 'qualified exemption', which means the public authority must balance the harm of disclosure against the public interest in releasing the information.

Find out more about section 43 - trade secrets and prejudice to commercial interests.

Section 41 can sometimes be used to protect information provided in confidence, including trade secrets, if they were provided to a public authority by a third party. Section 41 is an 'absolute exemption', meaning there is no requirement to perform a public interest test.

Find more information on section 41 - confidentiality.