When private interest is public interest

The right of any person under the Freedom of Information Act 2000 (FOIA) to request information held by public authorities, known as the 'right to know', came into force on 1st January 2005. The delayed legislation has proved a useful tool for journalists, researchers, campaigners and the general public to hold government and private companies to account. But the Act's many exemptions and the secretive mentality that still dominates government and business alike have greatly restricted this democratic 'privilege'. Here Shiar Youssef discusses one aspect of the problem, namely how public authorities often endeavour to protect private interests at the expense of public interests.

The presumption running throughout the FOIA is that openness and transparency are in themselves in the public interest. In the Introduction to the Act, the Information Commissioner lists the following “public interest factors” to “encourage” the disclosure of information:

• furthering the understanding of and participation in the public debate on issues of the day;

• promoting accountability and transparency by public authorities for decisions taken by them;

• promoting accountability and transparency in the spending of public money;

• allowing individuals and companies to understand decisions made by public authorities affecting their lives and, in some cases, assisting individuals in challenging those decisions; and

• bringing to light information affecting public health and public safety.[1]

In practice, however, the Act contains many exemptions (23 in total) for public authorities to choose from, in case they opt, as they often do, not to disclose information. Requests can also be refused if they are considered 'vexatious', i.e. if an individual keeps requesting the same information, or if they are 'cost-prohibitive', i.e. providing the information requested would cost the public authority more than £450, or £600 for central government.

Exemptions, exemptions

Section 1 of the FOIA sets out the right of any person to be informed whether or not information requested is held by the public authority concerned and, if yes, to have that information communicated to them. Section 2 then sets out the circumstances under which a public authority may refuse a request. These exemptions are divided into two categories: absolute and qualified.[2]

Absolute exemptions are cases where the right to know is wholly dis-applied, for instance when the information requested is related to bodies dealing with security matters (Section 23); is considered personal information covered by the Data Protection Act (Section 40) or by parliamentary privilege (Section 34).

The twisted logic behind many of these exemptions is based on the idea that government knows what's best for us, the public, even when it is lying to protect an unpopular political agenda, as in the case of the fabricated Iraq war dossier, or to advance the interests of arms companies in secretive arms deals, such as that between BAE Systems and Saudi Arabia, that are deemed to be in the 'national interest.' As Heather Brooke says in her 2010 book The Silent State, “Britain may be 'the mother of all parliaments' but, in reality, this country trades on a mythical view of itself, because basic information paid for by the public and collected in our name is off-limits to the very people it is meant to benefit.”[3]

Qualified exemptions, on the other hand, are cases where the public authority must consider whether the public interest in withholding the information requested outweighs that in releasing it. To do so, it must conduct what is known as a Public Interest Test to consider all factors and prove that disclosure is absolutely not in the public interest. In some cases, public authorities also retain the right to not even confirm or deny the existence of the information requested.

Qualified exemptions are further divided into class exemptions and prejudice-based. The first are designed to give protection to all information falling within a particular category, for instance information subject to legal professional privilege. Prejudice-based exemptions, on the other hand, only come into force if a particular disclosure would prejudice the purpose of the exemption, for instance prejudice to international relations. Both these subcategories, however, are subject to a public interest test, unlike absolute exemptions.

Typically, public authorities use Section 43 (commercial interests) and Section 42 (legal professional privilege) to withhold the details of contracts they hold with private contractors. Information provided in confidence (Section 41) is also used sometimes to withhold commercial information. Though this is an absolute exemption, the law of confidence contains an in-built public interest test. Other widely used qualified exemptions relate to national security (S.24) and defence (S.26), which should be read in conjunction with the absolute exemption contained in Section 23 on security matters; international relations (S.27); investigations (S.30) and law enforcement (S.31); formulation of government policy (S.35) and prejudice to effective conduct of public affairs (S.36). The latter, for instance, was used by the Commons to resist revealing MPs expenses before the scandal hit the news.

What is public interest?

You would have thought that 'public interest' simply meant what serves the interests of the general public. But who the public are and what serves their interests have always been subject to contestation depending upon your perspective. Indeed, the term 'public interest' is not defined in the FOI Act, which means public authorities are left with the task of deciding, on a case-by-case basis, whether public interest is best served by withholding or disclosing information by means of weighing up competing interests. In theory, the competing interests to be considered should only be public interests, and not private ones. In practice, however, the lines between the two are often blurred, as discussed below.

The question of where the public interest lies has often been considered by courts (the Information Tribunal and the High Court) in press cases, particularly where a celebrity or a multinational corporation attempt to prevent the publication of a story that paints them in a negative light. The courts have often distinguished between things that are in the public interest and things that merely interest the public. Judges have not always viewed the public’s right to know as important enough to override confidentiality claims, just as public authorities can view their commercial interests as more important than accountability and transparency.

Whose public interest?

As indicated above, one of the most used exemptions to withhold information held by public authorities is 'commercial interests'. Section 43 of the FOIA sets out an exemption from the right to know if:

• the information requested is a trade secret, or

• release of the information is likely to prejudice the commercial interests of any person.

A person could be an individual, a company, the public authority itself or any other legal entity. Thus, even information that does not constitute a trade secret can be withheld under this exemption if the public authority considered that its release would damage someone’s commercial interests. As explained by the Information Commissioner, a commercial interest “relates to a person’s ability to successfully participate in a commercial activity, i.e. the purchase and sale of goods or services. The underlying motive for these transactions is likely to be profit.” But in order to apply this exemption, the public authority is required to conduct what is known as a Prejudice Test, and then the Public Interest Test mentioned above.

At the same time, the Act states that the public interest balancing test should not consider any harm that disclosure may cause a private firm, so private interest should not be taken into account. Yet more often than not, public authorities have argued, when applying this exemption, that the possible harm caused by the release of information to the private contractor would operate to the disadvantage of the public authority, which would not ultimately be in the public interest. For instance, if a budget set aside for a purchase is disclosed, it is argued that this may encourage suppliers to raise their prices, or prejudice the bargaining position of the public authority, and so on and so forth. To understand this twisted logic better, let's look at a few more detailed examples.

An FOI request by Corporate Watch about asylum accommodation provided by private landlords in 2008 was refused by the UK Border Agency, which argued that releasing the information requested “would be likely to prejudice the commercial interests of both the UKBA and those companies with whom the UKBA enters into contracts,” as this “could give rise to a potential risk to the UKBA’s ability to negotiate contracts in the future, and therefore inhibit the Agency’s ability to achieve value for money.” After an appeal, the Information Commissioner overturned the original decision, agreeing with us that “there is a significant public interest in knowing details about the value and length of contacts awarded by government departments, especially those which are for such a large sum of money.” Therefore, the public interest in accessing the information requested “outweighs that in withholding it and should have been released to you in response to your original request.”

What public authorities seem to often 'forget' is that, in order to use the commercial interests exemption on behalf of a third party, i.e. to claim that a private contractor's commercial interests are likely to be prejudiced by the release of information, the public authority needs to consult with that third party before the exemption can be applied. Often, no such consultation takes place, and this can, in fact, be a basis for appealing such decisions.

In another instance of refusal, a local government replied to a request about one of its contracts with a private-sector provider saying “We are redacting this information under the commercial interest exemption detailed in Section 43(2) of the FOI Act because the release of this information would be prejudicial to the commercial interests of the private provider.” After applying for an internal review, the public authority responded saying, “While I accept that it is appropriate to apply Section 43(2) to the information you have requested, I am sorry if the wording of the original response about how the exemption was applied was in any way misleading.” Really?! Just the week before, the Information Commissioner had stated, in an Awareness Guidance, that contracts awarded by public authorities “should be disclosed,” particularly where a company “enjoys a monopoly over the provision of the goods or services in question,” as “it is less likely that releasing the information will have a prejudicial impact on that company.”[4]

Transparency versus secrecy

In deciding whether the disclosure of a particular piece of information would be harmful or beneficial to the public, a great deal of judgement is exercised by public authorities' information officers. The dominance of the market ideology and a culture of secrecy in doing business mean that the emphasis is often on protecting short-term commercial interests at the expense of transparency and accountability. Even if we bought into these market values, what about the right of taxpayers to know how their money is spent? As George Monbiot once put it, “If we are not allowed to see what’s being done in our name, there’s a pretty good chance we are being ripped off.[5]

Another widely used exemption is Section 36 (prejudice to the effective conduct of public affairs). This can be best described as a catch-all exemption that public authorities resort to when they are desperate. During the House of Lords debate on the FOIA, Lord Mackay summed up the exemption’s sole purpose as follows: “Obviously the draftsman decided, just in case something escaped and there is one last fish in the sea, let us get it with a grenade; and this is the grenade.”[6]

Now if the “default position” is “for openness,” as claimed by the Act's draftsmen and reiterated by politicians and public authorities, then why are there all these exemptions? And why do public authorities misuse them to protect private interests? Surely a “new culture of openness” should involve challenging the way in which things have been done in the past and are being done at present. Yet, it seems that the (private) interest in withholding information that may reveal incompetence or corruption on the part of public authorities or their private 'partners', or may simply embarrass them, continues to override the (public) interest in transparency, accountability and good administration. For those who still believe that representative democracy could work, here is another quote from Heather Brooke, who first broke the MPs expenses scandal after a three-year battle in the courts: “If we're not an informed electorate, then we cannot call ourselves a democracy.”[7]

[1] Information Commissioner's Office, 'Freedom of Information Act – Awareness Guide No. 3', v. 2, 1 March 2007.

[2] The full text of the Act can be found at www.legislation.gov.uk/ukpga/2000/36/contents.
[3] Heather Brooke, The Silent State: Secrets, Surveillance and the Myth of British Democracy. London: William Heinemann, 2010.

[4] Information Commissioner's Office, 'Freedom of Information Act – Awareness Guide No. 5', v. 3, 6 March 2008.

[5] George Monbiot, 'Why have we paid £93m for a £15m bridge?', The Guardian, 28 December 2004.

[6] Ben Fenton, 'Commons uses veto on freedom of information', The Telegraph, 15 Sep 2006.

[7] Heather Brooke, ibid.