FOIA Section 43 Exemption

Section 43: Commercial Interests

Section 43 exempts information whose disclosure would be likely to prejudice the commercial interests of any person. It also includes a specific exemption for trade secrets.

Key points:

• Section 43 protects not only the commercial interests of third parties but also the commercial interests of the public authority that holds the information;
• Public authorities will need to bear in mind that the commercial sensitivity (particularly the market sensitivity) of information will usually decrease with time;
• Section 43 is subject to the public interest test.

Official Guidance

• Ministry of Justice guidance: Section 43: commercial interests
• ICO guidance: Awareness Guidance 5 - Commercial interest
• ICO guidance: Awareness guidance 5 annexe - public sector contracts
• ICO guidance: Awareness guidance 20 - prejudice and adverse affect

What to check for in refusal notices

For information to be witheld under Section 43, the following must be provided:

• Details of the exact FOIA exemption - either 43.1 Trade Secrets or 43.2 Commercial Interests
• Details of who would be prejudiced - see MoJ guidance above, p4.
• A "Public Interest Test" where the arguments for and against release of the information should be discussed (as this is a "qualified" exemption).
• If release of the information could prejudice a third party, they should be consulted with - see FOIA Section 45 Code of Practice Part IV

In addition much information from recent public sector contracts should be made available, especially if they are from after 2005, the start date of the FOIA - see ICO Awareness guidance 5 annexe - public sector contracts

What the law says

43 Commercial interests

(1) Information is exempt information if it constitutes a trade secret.

(2) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).

(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice the interests mentioned in subsection (2).

Decision Notices

Exeter City Council, August 2006

http://www.ico.gov.uk/upload/documents/decisionnotices/2006/decision_notice_fs50080412_v2.pdf

The Council was ruled to have invalidly claimed a s43 exemption by refusing to disclose commercial details relating to a land transfer.

Freedom of Information Act 2000

Exemptions

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