Keep it legal: Freedom of Information Act

It is well known that the Freedom of Information Act 2000 has introduced a right for the public to obtain certain information from specified public sector organisations. Because few charities are listed in the act, many have been lulled into a false sense of security, believing it will not affect them.

This is not the case. In today's commissioning culture, charities are continually passing their confidential and commercially sensitive information to public sector bodies that are subject to the act (and the equivalent Scottish legislation), making the information potentially available. Third parties, whether competitors or otherwise, have been identifying public bodies that hold information about charities and have been using the act to try to obtain it for their own purposes.

The act specifies that public authorities holding information are solely responsible for deciding whether it should be disclosed after a request is made under the act. This could mean that a charity is never informed of the request or disclosure. If steps are not taken to protect sensitive information at the point that a charity transfers it to a public body, it might be disclosed to the public.

Many exemptions from disclosure can be applied by a public authority. Key exemptions are those that apply to confidential information or relate to the commercial interests of a party. But the charity must put the public authority on notice of such issues. Blanket statements of confidentiality are unlikely to work. More effective approaches include statements on the front of documents, placing confidential and commercially sensitive information in schedules attached to the main document (such as a tender submission) and not disclosing such information without giving necessary thought to freedom of information issues.

Charities providing confidential or commercially sensitive information to public authorities could also consider taking legal advice to protect the information from disclosure.

 - Benjamin James is a partner at Bircham Dyson Bell

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