Line to take - LTT40 - Contracts between public authorities and third parties
- FOI/EIR: FOI
- Section/Regulation: s41
- Issue: Contracts between public authorities and third parties
- Source: Information Tribunal
- Details: Derry City Council / Belfast Telegraph (11 December 2006)
- Related Lines to Take: n/a
- Related Documents: FS50066753, EA/2006/0014, Awareness Guidance 2, e-mail [Redacted name] to FOl (13/12/06)
- Contact: LA
- Date: 30/03/2007
- Policy Reference: LTT40
- © Copyright Information Commissioner's Office, re-used with permission
- Original source linked from here: LTT
Line to take
A written agreement between two parties does not constitute information provided by one of them to the other, and therefore a concluded contract between a public authority and a third party does not fall within section 41(1)(a) of the Act.
In order to rely on s41 the information has to have been obtained from another person. In Derry City Council v The Information Commissioner the Tribunal upheld the ICO view that a written agreement between two parties did not constitute information provided by one of them to the other, and that therefore, a concluded contract between a public authority and a third party does not fall within section 41(1)(a) of the Act.
The Tribunal stated that “we are aware that the effect of our conclusion is that the whole of any contract with a public authority may be available to the public, no matter how confidential the content or how clearly expressed the confidentiality provisions incorporated in it, unless another exemption applies.”
However, the Commissioner recognises that this statement should not be taken in isolation as the Tribunal then went on to qualify it and to identify certain information to which it might not apply.
It clarified that the following information may, depending on the circumstances of the case, count as confidential information obtained from a third party:
- Information regarding a pre-contractual negotiating position.
- Technical information either contained within the body of a contract or provided as a separate schedule.
The above point about technical information recognises that sometimes contracts record more than just the mutual obligations and joint agreements of the contracting parties. Where technical information is included this may be information that is provided by one party to another rather than a recording of jointly agreed terms.