The Freedom of Information Act 2000 provides public access to information held by public authorities.
It does this in two ways:
- public authorities are obliged to publish certain information about their activities; and
- members of the public are entitled to request information from public authorities.
The main principle behind freedom of information legislation is that people have a right to know about the activities of public authorities, unless there is a good reason for them not to. This is sometimes described as a presumption or assumption in favour of disclosure. The Act is also sometimes described as purpose and applicant blind.
This means that:
- everybody has a right to access official information. Disclosure of information should be the default – in other words, information should be kept private only when there is a good reason and it is permitted by the Act;
- an applicant (requester) does not need to give you a reason for wanting the information. On the contrary, you must justify refusing them information;
- you must treat all requests for information equally, except under some circumstances relating to vexatious requests and personal data. The information someone can get under the Act should not be affected by who they are. You should treat all requesters equally, whether they are journalists, local residents, public authority employees, or foreign researchers; and
- because you should treat all requesters equally, you should only disclose information under the Act if you would disclose it to anyone else who asked. In other words, you should consider any information you release under the Act as if it were being released to the world at large.
In respect of procurement activity, the institution should endeavour to ensure that, as far as practicable, procurement activity falls within the auspices of good procurement practice. Further, in keeping with the spirit of the EU Public Procurement legislation, formal de-briefing should be provided in accordance with best practice. This approach should minimise the number of FoI enquiries.
There are some exemptions to the general right of access to information that may be relevant in relation to information concerning procurement processes or contracts awarded.
- Qualified exemptions apply where public interest in maintaining the exemption outweighs the public interest in disclosure e.g. Commercial Interests
- Absolute exemptions apply to information obtained from another and disclosure would give rise to an actionable breach of confidence e.g. Confidentiality. (When issuing quotation or tender documentation, it is recommended that a suitably worded clause is included in the documentation. This should require the supplier to advise, for example, which material provided in its submission is confidential or commercially sensitive and may not be disclosed in response to a request for information under the Act. Note: the supplier must give robust justifications for the information to be treated as confidential).
- The cost of compliance would exceed the appropriate limit. (Currently, the cost limit for complying with a request or a linked series of requests from the same person or group is set £450. You can refuse a request if you estimate that the cost of compliance would exceed this limit. This provision is found at section 12 of the Act.
- The requests are vexatious
- Information requested is reasonably accessible by other means e.g. Award Notice. Procurement exercises falling within the remit of the EU Rules will have a contract award notice published in the OJEU and on Contracts Finder and contracts that exceed £25,000 will have a contract award notice published on Contracts Finder.
- Request is for personal data and disclosure would contravene Data Protection Act and/or the right to disclose likely to cause damage or distress e.g. identities of evaluating team, individual contacts in the contractors organisation.
Further information is available from the Information Commissioner's Office web site.
A number of articles and publications have been prepared looking where Procurement has withheld pricing information on the basis of