This note is intended for Suppliers and Contractors dealing with public sector purchasers. It explains how FOIA applies to the council and how the council approaches the handling and disclosure of information relating to Suppliers and Contractors.

Q1. What is the Freedom of Information Act?

The Freedom of Information Act 2000 (FOIA) came into force on 1st January 2005 and changed the way that Castle Morpeth Borough Council approaches the handling and disclosure of all recorded information about its Suppliers and Contractors. The FOIA aims to create a greater culture of openness, accountability and transparency in public life by creating an unprecedented right of access to the information held by public authorities.  

Q2. Which public authorities are covered by FOIA? 

The FOIA applies to public authorities listed in Schedule 1 of the Act, (includes for e.g. local authorities, NHS, schools, colleges, universities, fire, police and government bodies), and companies which are either wholly owned by the Crown or by any public authority listed in Schedule 1. This amounts to approximately 130,000 public authorities throughout the UK.

 Q3. What is a FOIA Right of Access?

The FOIA gives everyone the right of access to all recorded information held by, or on behalf, of Castle Morpeth Borough Council, (such as the Contractor) unless one of the exemptions set out in the Act applies, (see below). The request for information can originate from anywhere in the world, and can be made by any individual, company, journalist or community group. The request must be in writing or another “recordable” format (e-mail is acceptable); provide a name, address for correspondence and specify the information required. 

Q4. What Kind/ types of information are covered by FOIA? 

The FOIA is fully retrospective, which means that it covers all information already held in a recordable format by Castle Morpeth Borough Council, irrespective of how old it is. FOIA therefore covers information contained in a hard copy (letters, paper files), electronic files (including e-mail), video and audio formats (including CCTV), as well as any information created after 1st January 2005, subject to certain exemptions.. 

Q5. How will Public Authorities respond to a FOIA request? 

Castle Morpeth Borough Council is under a statutory duty to initially confirm or deny that it holds the information and then communicate the information within 20 working days of receipt unless one of the exemption applies, (period starts from day after the request is received). As this is a statutory obligation, Castle Morpeth Borough Council will not be able to transfer, delegate or contract out of its duties under FOIA to a third party. 

Q6. If I provide information relating to our Supplies or Services to the authority as part of our tender submission, will this information be disclosed under the Freedom of Information Act? 

All information held by Castle Morpeth Borough Council is within the scope of FOIA and must be disclosed on request unless Castle Morpeth Borough Council determines that an exemption applies. For example, Castle Morpeth Borough Council would be under a duty disclose information about a contract with a grounds maintenance company, unless that information was covered by an exemption. 

Q7. Do Suppliers and Contractors have to comply with FOIA?  

If Castle Morpeth Borough Council gets a Right of Access request that includes information held by a Supplier or Contractor on behalf of Castle Morpeth Borough Council, the Supplier or Contractor concerned shall have to comply with the Act and supply that information to Castle Morpeth Borough Council for it to be able to communicate a response. The Supplier/ Contractor will be expected to supply that information in good time to ensure that Castle Morpeth Borough Council does not breach the Act. The Supplier/ Contractor will be receiving further information on this from Castle Morpeth Borough Council shortly. Supplier/ Contractor who think they will be affected by the FOIA as they hold information on behalf of Castle Morpeth Borough Council should contact their principal contact at Castle Morpeth Borough Council as soon as reasonably practicable to ensure that they get the appropriate training and support.
 
Q8. Are there any exemptions that allow public authorities to refuse to disclose information?

The FOIA exempts certain types of information from the Right of Access. There are two types of exemptions: Absolute Exemption, (such as information that is reasonably obtainable elsewhere, (i.e. in a publication scheme), information provided in confidence and where release of the information would amount to contempt of court). Where information falls within the terms of an Absolute Exemption, Castle Morpeth Borough Council may refuse to disclose the information and, in some circumstances, can also refuse to confirm or deny whether the information exists. Secondly, Qualified Exemptions, (such as information intended for future publication, (i.e. there are plans to publish the information in the future, and it is reasonable, at the time of the request, not to disclose it immediately) and information relevant to criminal investigations and criminal/civil proceedings. Note that Qualified Exemptions will only apply in circumstances where the authority can prove that there would be a real and significant damage (prejudice) to the authority or to other people if the information were made public (“Public Interest Test”).

Q9. What is the Public Interest Test?

Important to note that, public interest does not mean what is of interest to the public but rather, what is in the interest of the public, which will evolve with time and changing circumstances. Castle Morpeth Borough Council must consider whether, in all the circumstances of the case, the public interest in withholding the information is outweighed by the public interest in disclosing the exemption. If the two are evenly balanced, the presumption will be in favour of disclosure.

Q10. Will Suppliers/ Contractors be consulted before their information is disclosed?

It is Castle Morpeth Borough Council decision whether or not to disclose contractual information, but it will consult to take the views of Suppliers/ Contractors into account when making a decision under FOIA. Castle Morpeth Borough Council strongly recommends that if a Supplier/ Contractor considers information would be exempt under FOIA, it identifies for Castle Morpeth Borough Council the exact nature and location of this information in their tender.

Q11. What if we include/ have a confidentiality clause in the contract to prevent disclosure?

The confidentiality obligations in contracts will be subject to Castle Morpeth Borough Council statutory obligations under FOIA. There will have to be genuine commercial and/or legal reason as to why information should be treated as confidential. Information provided in confidence will only be exempt if disclosure of that information would give rise to an actionable breach of confidence. This is a narrow and specific legal exemption, which applies in very limited circumstances defined by the courts through complex case law and you should therefore not assume this exemption shall apply just because information is confidential and it is an Absolute Exemption.