Freedom of Information Staff Guide: Contracts, Contractors and Suppliers
The Freedom of Information Act and the Environmental Information Regulations apply to all the information in SOAS's possession, regardless of its source. The legislation doesn't just cover information produced by the School - it also extends to information which we hold which was originally provided by outside organisations, such as the companies with whom we do business. Information dealing with our relationships with these firms will also be covered.
Examples of the types of information which are within the scope of FoI and EIR include:
- Information which we might gather in the run up to a procurement exercise, such as product catalogues and details of potential suppliers.
- Information provided by prospective suppliers as part of the tendering process.
- Contracts and associated documents, such as the correspondence connected with negotiating a contract.
- Information supplied by the contractor during the delivery of a contract, and information relating to our monitoring of the contract.
Requests for this sort of information have to be handled like any other Freedom of Information or Environmental Information request. The information must be provided unless a valid limit or exemption applies (see Dealing with requests for information). There are two exemptions in the Freedom of Information Act which can be particularly relevant to requests that touch on our relationships with contractors, suppliers and tenderers (similar exemptions exist in the Environmental Information Regulations):
(i) Information provided in confidence (Freedom of Information Act, section 41). This exemption can be used where the information was supplied to the School by an outside body or individual, and the disclosure of the information would be an actionable breach of confidence - that is, there is a reasonable prospect that a court would rule against us if we released the information. The way the common law of confidence has evolved means that an actionable breach of confidence is likely to occur if all of the following conditions hold:
- The information has the necessary "quality of confidence": i.e. it is not widely available or completely trivial;
- When the information was conveyed to SOAS, there was an explicit or implicit understanding that the information would be kept in confidence; and
- The release of the information is done without the permission of the party which supplied it.
In certain cases, the courts have set aside a duty of confidence on the grounds of an overriding public interest, but the grounds for breaching confidence must be strong ones (e.g. the information relates to misconduct or illegal activity).
(ii) Commercial interests (Freedom of Information Act, section 43). This exemption applies in the following circumstances:
- The information is a trade secret, i.e. it is restricted information which is the source of a supplier's competitive edge in a particular market; or
- The release of the information would cause or be likely to cause actual harm to the commercial interests of a supplier, understood to mean its ability to successfully participate in a commercial activity; and
- The public interest in withholding the information and maintaining the exemption outweighs the public interest in releasing the information.
This exemption can be used to protect the commercial interests of SOAS as well as the interests of outside bodies with whom we do business. For example, we might invoke it to refuse to release information which would undermine the School's ability to negotiate the lowest possible price for goods or services, or which would affect our ability to compete with other HE institutions.
When applying this exemption, we have to keep in mind that the commercial sensitivity of information can change with time. For example, information which is very sensitive during the tendering process may no longer be sensitive once a contract has been awarded; contracts and their associated information may cease to affect commercial interests once the contract has expired.
These and other exemptions may allow us to withhold information about our dealings with contractors and suppliers - but as the above discussion indicates, exemptions can only be used in certain situations, and can be difficult to apply. The key point is that there is no blanket exclusion under FoI or EIR for information relating to the private sector which is in our custody.
The fact that a right of access now exists to information about the School's contractors and suppliers presents a number of potential problems:
- Companies may not be aware of or understand the requirements of the Freedom of Information Act and the Environmental Information Regulations.
- It may not be obvious what information a company would regard as confidential or commercially sensitive, without consulting them.
- Companies may seek to impose conditions restricting the release of information which are incompatible with the legislation. The Information Commissioner has said that such conditions will be overriden by our obligations under FoI and EIR: if no valid exemption or limit applies, we will be obliged to release the information, even if this conflicts with the wishes of the supplier or the terms of a contract. This can be a particular problem for "legacy" contracts which predate Freedom of Information and the Environmental Information Regulations. There may be a conflict between the expectation of a supplier that all information will remain restricted (as in the past), and the changes brought about by the legislation.
(1) Prospective suppliers should be told that information which they provide when tendering for goods or services will be subject to FoI and EIR. The information may have to released by SOAS if requested, and the School's decisions on what should be released will be final. The Purchasing Department has developed model clauses for use in instructions to tenderers which explain the implications of the legislation (contact Purchasing for further information on tendering procedures).(
(2) Blanket confidentiality clauses in new contracts must be avoided. The Information Commissioner and the Office of Government Commerce recommend that contracts should draw the attention of suppliers to the requirements of FoI and EIR. Where possible, the contract should identify information which the contractor regards as commercially sensitive, as this will simplify the process of dealing with access requests - although decisions on whether or not to withhold will still have to be made by SOAS on a case by case basis.
The Office of Government Commerce has developed model contract clauses relating to FoI and EIR which can be adapted by public authorities. These clauses have been used to produce model clauses on Freedom of Information and Data Protection for contracts issued by SOAS. There are also clauses relating to Freedom of Information in the School's General Conditions of Purchase.
(3) We should consult with contractors and suppliers whenever information relating to them is the subject of an information request. SOAS is committed to consulting with third parties whose interests may be affected by a request, in accordance with the School's Freedom of Information Policy and the recommendations in the government's code of practice on handling Freedom of Information requests (known as the Access Code). While we will take account of suppliers' views as far as possible, the ultimate responsibility for determining whether information has to be released rests with SOAS. Information which we provide to tenderers and contractors should make clear our commitment to consult with them, and the fact that sometimes we may have to release information against their wishes.
If an outside body holds on our behalf information which SOAS owns, that data will be subject to the Freedom of Information Act and the Environmental Information Regulations, and we will be responsible for dealing with information requests. This will be the case, for example, if a firm stores our records, or processes data for us in an outsourcing arrangement. In such cases, we will also be responsible under the Data Protection Act for any processing of personal data carried out by the contractor (see the School's Data Protection Policy for further details).
We need to ensure that organisations which hold information on our behalf understand that the information is subject to FoI and EIR. Information requests should be passed back to SOAS, and the contractor should be prepared to provide us with assistance in dealing with requests. Where processing of personal data is involved, we must also ensure that the data is processed under a written contract which has adequate provisions relating to data security, as required by the Data Protection Act (see the Data Protection Policy).
European Union procurement directives apply to contracts awarded by the School where the value of the contract exceeds set thresholds. The directives specify that certain information about the contract award has to be provided to all tenderers, and unsuccessful tenderers can ask to be debriefed as to the reasons for rejection and for certain details of the succesful tender. These information rights on the part of tenderers are distinct from, and overlap with, those created by Freedom of Information and Environmental Information. Further information about the EU procurement rules is available from Purchasing.
Last updated January 2008