Freedom of Information Act (FoI)
The Act came into force 01/01/2005 and gives any person, including foreign nationals
and companies, rights to access information held by a public authority in England,
Wales and Northern Ireland. The legislation is retrospective and includes information
recorded (in any form) before the Act came into force.
The Act provides a general right of access but there are exemptions: -
Section 41 confidentiality, ie the owner of the information could bring an action
for breach of confidence; absolute exemption.
Section 43 commercial interests, conditional exemption but the default position is
disclosure. Information can be withheld if disclosure would, or might, prejudice
the commercial interests of any person or the authority (trade secrets not subject to
confidentiality, information as commercially valuable as a trade secret such as the
results of trials, research, business plans) or where the information is market
sensitive (ie an organisation is preparing to move premises). The authority has to
determine that the public interest served in not disclosing outweighs the public
interest served by disclosing. This will be tested by the information commissioner
and ultimately the courts
The Act affects the private sector in that information disclosed by a private business
to a public authority is potentially accessible to a third party. So a business may be
able to find out more about government, policies and the market but in turn others
may do the same to them.
The question posed by Betty Albon FRICS, Corporate Property Officer, Property Services,
Resources Directorate, telephone 01284 757307 was : -
”St Edmundsbury received 3 FoI requests on the 1st day! One asks to see all contracts
between the Council and the developer of a major town centre redevelopment site. The
Council is trying to decide what can and cannot be revealed and I welcome advice of
colleagues as to how much is covered by valid exemptions.”
Responses received from the following authorities
Alnwick DC Jane Stratton
Barnet LB David Stephens
Basildon DC Jim Ross
Birmingham Peter Jones
Bradford MDC Mike Bell
Bromley LB Frank Whiting
Camden LB Alan Jacques
Carmarthenshire CC Jonathan Fearn
Chester City Council Cliff Mallows
Chorley BC Roger Handscombe
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Cornwall County Council Bob Perry
Darlington BC Guy Metcalfe
Dartford David Fletcher
Derby City Council Jim Olford
Doncaster MBC Peter Howard
East Staffs BC Ray Ashton
East Sussex County Council Andrew Preissner
Glasgow City Council Willie Martin
GO YH Brian Ablett
Halton BC Jerry Goacher
Harrogate BC Bernard White
Havant BC Andrew Case
Herefordshire CC Alison Hext
Hillingdon LB Martin White
Leicestershire CC David Cragg
Mole Valley DC John Burgess
North Ayrshire Council John Ferguson
North East Lincolnshire Council Richard Sands
North Lanarkshire Council Alan Slack
Northumberland CC Ian Hay,
Nottingham City Council Richard Allen
Nottinghamshire CC Henry Blagg
Office of the Deputy Prime Minister Simon Lait
Reading BC Bruce Tindall
St Albans City & DC Andrew Wearmouth
Shetland Island Council Andrew Drummond-Hunt
South Ayrshire Council Malcolm MacAskill
South Lakeland DC Dave Pogson
South Ribble BC Sam Hird
Stockport MBC Brian Ormerod
Suffolk CC Brian Prettyman and Neil McManus
Vale Royal BC Anthony Haward
Warwickshire CC Rebecca Couch
Waverley BC Miller Stevenson
West Lothian Council David Forsyth
Wolverhampton MBC Tony Woods
An analysis of responses received follows. Abbreviations used and references and
supplementary information provided follow the analysis
NB The views summarised therein are those of the person responding unless another source is
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Analysis of responses received (edited) listed by reponders surname
Brian Ablett, Find out what the Civil Service does. ODPM has issued Guidance. Try
GO YH usual contacts or use FoI if not forthcoming!
Richard Allen At this stage I am unable to help.
Ray Ashton, The Council has an agreed FoI policy, copy attached.
East Staffs BC
Mike Bell, Bradford has run a series of FoI training sessions and issued guidance to its
Bradford MDC staff on responses to requests. Our solicitors will give additional advice
where we are uncertain. The key is how to interpret the permitted
exemptions. So far we have been able to deal with requests by releasing
copies of documents and legal agreements.
Henry Blagg, The Council has received about 30 FoI requests, including 2 searching
Nottinghamshire property ones. I am corporate property liaison contact. There is a Council
CC wide procedure for dealing with requests which if "complex" (ie potentially
exempt or anything other than simply supplying what is required) are
referred to named "champions" and then legal who have the view that
uncertainties will persist until there is Case Law. We have identified
uncertainties about how much information should be revealed or considered
exempt, and expect that this will persist for some time. Each request should
be treated uniquely; there will be subtle distinctions between apparently
similar schemes and requests.
John Burgess Slides from FoI presentation by Charles Solomon of VOA available on
Mole Valley DC paper only.
Andrew Case, This is not on the same scale but in case the principles are helpful I attach a
Havant BC file note and email response to Havant’s first property request. The Council
was advertising a beach kiosk concession and a prospective tenderer asked
about the old rent which we refused to reveal as it might depress offers; so
an FoI request was made. Havant Legal helped with the file note and
response (which is probably why they read like legal documents!). The
Council’s starting point is that we should release information wherever
possible, but we will invoke exemptions where necessary. We have made
extensive use of the DeCAf website http://www.dca.gov.uk/foi/
Rebecca Couch Only 3 requests so far; Warwickshire protocol for dealing with FoI requests
Warwickshire attached which may be of some use to other member.
David Cragg, If I receive such a request, I will probably respond as follows, depending on
Leicestershire the contract details.
CC 1. If contracts have been exchanged I would provide the overall value of
each contract unless it was published or about to be published in a
document or on a website of the Authority. In which case, I would only
refer them to the appropriate publication.
2. If negotiations are ongoing and contracts not exchanged, I would not
release or let them see the information as I would classify it as
3. I would not let anyone see the financial breakdown of any contract as I
would declare it commercially sensitive and not in the public interest.
4. I would be prepared to let them see the terms and conditions of the
contract notwithstanding any financial elements which I might declare
commercially sensitive and blank out.
5. As a developer, I assume he has a number of sub-contracts. If the
Authority is aware of these and they are in your possession, you may find it
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difficult not to release the information if requested. Whilst I would accept
such information is commercially sensitive to the developer and sub-
contractor, it is not necessarily so to the Authority.
Andrew Scottish FoI is more favourable to the enquirer than the English version.
Drummond- Follow the comprehensive Scottish FoI Guidance available the Scottish
Hunt Shetland Procurement Directorate website, and you are almost certain to comply with
Island Council English requirements. Shetland Islands Council intends to follow this
Jonathan Fearn In preparing for FoI last year we ran through some dummy questions, and
Carmarthenshire answers. These are attached; question 4 deals with development.
John Ferguson, No Property Services FoI requests so far.
David Fletcher, Please refer to the Council’s website for details.
David Forsyth, No Property Services FoI requests so far.
Jerry Goacher, I take the view that the documents contain commercially sensitive
Halton BC information and therefore have a qualified exemption. So far we have taken
the stance the public interest in releasing commercially sensitive contractual
information does not outweigh the public interest in withholding it. Where
details are not commercially sensitive they will be available in already
published committee reports and minutes and so FoI is not involved.
Roger No property FoI requests to date but I am advised that we do not have to
Handscombe, hand over any documents but can reveal specific information where there is
Chorley BC a clear request, ie a request to provide “all information" about a transaction
is not valid as it is insufficiently specific, as is the request to supply contract
documents on the lines you mention. Also the defence that transaction
details are commercially sensitive initially may diminish with time and,
eventually, all details may have to be produced.
Anthony All Vale Royal staff have been through an FoI training programme. Each
Haward, Vale Directorate has nominated 2 "champions" to deal with enquiries, and the
Royal BC response or reference to Legal Section for further advice. Staff have been
encouraged to destroy old records that we are not legally bound to retain.
This has created conflict with the need to retain property records. A Policy
is being developed. For your issue there may be scope under section 43 of
the Act, “Prejudicial to Commercial interest.” You could reveal the
developers identity and suggest the information could be available from
them (section 21). Do not forget the Data Protection Act.
Ian Hay, Northumberland’s approved FoI Publication Scheme is attached. We would
Northumberland class the information you refer to as exempt.
Alison Hext, No requests so far but only conflicting advice available.
Sam Hird, Refer to EG 15/01/2005 page 92. If information such as DA is disclosed
South Ribble there should be a substantial charge for the documentation.
Peter Howard Doncaster’s FoI policy and guidance is published on the authority’s website
Doncaster MBC www.doncaster.gov.uk; staff will adhere to these as there are no alternative
policies or procedures to follow.
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Alan Jaques, It is difficult to comment on your case without more information, eg are the
Camden LB contracts referred to still in negotiation or completed. Also who has made
the request as this is relevant to the consideration of "public interest". It
may be that you could decline to disclose some contract information on the
grounds that it would, or would be likely to, prejudice the commercial
interests of the Council or a third party, in accordance with the qualified
exemption in the Act. This will be much more difficult with contracts that
are completed and/or implemented. Please note the London Branch Seminar
on FoI, 8th March and good value at £75!
Peter Jones, Birmingham has had a spate of requests but this is calming down now. One
Birmingham request, similar to yours, is from the local press about a high profile
development site called Paradise Circus. The request is to see all reports
and advice since 2002. Potentially this catches a series of reports from the
Council’s consultants with appraisals and advice on the viability of the
scheme. On legal advice we have claimed an exemption based on the
commercial sensitivity of the information
Simon Lait, You say you are currently working in partnership with a developer on a
Office of the major town centre regeneration project and have received an FoI request to
Deputy Prime supply contracts between the Council and the developer. The attached may
Minister be of assistance.
Malcolm There is commercial confidentiality involved but the FoI Officer will advise
MacAskill, whether to release information or not. Also ask the developer whether they
South Ayrshire are prepared to release information. South Ayrshire will release information
Council unless there is compelling reason not to.
Cliff Mallows, Not been asked yet but a city centre development is in negotiation. The
Chester City intention is to produce a “clean” DA for FoI purposes but a CPO Inquiry is
Council coming up and the DA will have to be disclosed then.
Willie Martin Please refer to the departmental database of FoI enquiries. The only issue I
Glasgow City can see is in relation to entry 2 where we are in active negotiation with a
Council prospective purchaser. The comments in relation to entries 6, 7 and 11 are
merely markers at this point in time and I personally don't think will come
Guy Metcalfe, Darlington has not yet received any property related requests but has an
Darlington BC appointed FoI officer and procedure in place. In your case I would think a
refusal on qualified exemptions/commercial interests basis would apply.
Consider contacting Paul Simpkins on www.actnow.org.uk
Jim Olford, Refer to EG 15/01/2005 page 92, more property orientated than Information
Derby City Commissioner Guidance Note 5 otherwise once the Land Registry release
Council land price there is little that can be treated as exempt.
Brian Ormerod, ACES North West Region is seeking CPD speakers able to address property
Stockport MBC specific elements of the Act. FoI is now a standard agenda item. Attached
an extract from our FoI Guidance Notes that highlights conflict between
entitlement and exemptions. Other thought; as the Land Registry makes sale
prices available at a fee this is considered a satisfactory reason for not
disclosing figures in completed transactions. Information relating to offers
prior to exchange of contract is covered in the above Guidance by the first
point in the section “What kind of information is likely to be withheld?”
Bob Perry, Cornwall has issued extensive legal advice, has published guidance on our
Cornwall intranet, has a dedicated FoI Officer, and processes for dealing with FoI
County Council requests. Our view is that FoI will produce judicial decisions which will
shape and clarify the law.
Dave Pogson, No requests so far.
Andrew Preissner The Council has several requests already, including one about a
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East Sussex CC controversial disposal and another asking for details of all our mobile
telephone masts. The disposal case was straightforward as the sale was
completed and much of the information already in the public domain; ie via
press release or Land Registry. We do have some FoI literature although not
specific to property issues.
Brian Prettyman Previous experience suggests it is hard to justify withholding much
Suffolk CC information at all. The likelihood is that a DA would be released but clauses
relating to conditions still to be fulfilled would be withheld as it is possible
that a third party could influence whether the fulfilment was achieved.
Jim Ross, No Property Services FoI requests so far. I do not think it will be easy to
Basildon DC make a valid case for classifying information as exempt. Life could get
interesting when developers and contractors realise they may be able to use
FoI to access commercially sensitive information
Richard Sands, An FoI request has been received for a copy of my Valuation Report and
North East Certificate relating to the sale of a former school site. Reports are to be
Lincolnshire provided with valuation figures blanked out (on the basis they are
Council commercially sensitive).
Alan Slack The councils corporate centre deals with all FoI requests and responses.
North There is an appointed FOI officer.
David Stephens, Barnet’s approach is that if the information falls under the exemptions
Barnet LB given by paragraphs 7 and 9 of Schedule 12A of Part 1 of the Local
Government Act 1972 then it remains exempt. Thus, if it is financial
information about a third party or if the information could commercially
prejudice the Council if disclosed, then it can be withheld. Otherwise why
not ask the Information Commissioner?
Miller Waverley has received requests to release information on contracts relating
Stevenson, to development schemes. In conjunction with our FoI officer contracts will
Waverley BC be released but withholding any reference to Licence fees, Sureties,
Financial provisions, Costs, Appraisals, Deeds of covenant etc, and Fees.
Anything deemed to be financial information has been withheld, citing
Section 43 exemption [Commercial Interests]. Currently we are consulting
our development partners and pending their agreement nothing has yet been
released. We would welcome reference to the Information Commissioner to
get some clarity and precedent. In applying the "public interest" test is it
possible to ask why the inquirers want this information.
Jane Stratton, All FoI requests (none received so far) will be discussed with the Council’s
Alnwick DC FoI Officer (Assistant Council Solicitor). Conflict with the commercial
interests of a Council contractor would fall into the exempt category.
Bruce Tindall, Reading has received some property requests related and has a process that
Reading BC directs FoI to a central resource offering support and guidance. The general
view is that the more historical the information is then the less chance there
is of asserting the site is commercially sensitive, particularly if information
is already public eg land registry records, and the authority’s own accounts
that may identify individual sites and values. A draft clause the private
sector wishes to include in a still under negotiation DA is attached. A
revised MDA with certain items omitted would then be appended to the
Andrew St Albans has adopted Hertfordshire CC internal FoI advice. The county
Wearmouth has agreed to release this for completeness and without guarantees; but any
St Albans City other authority should obtain its own independent advice on any queries.
& DC However, St Albans takes the view that enquiries MUST be in writing, not
the "should" as in the County paper.
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Bernard White Most Councils will have a FOI officer. We have an advisor who is acting
Harrogate BC for all the Councils in North Yorkshire. Colleagues may want to seek out
their counterpart and take a view
Martin White I received a vague request for information about land sold for a major
Hillingdon LB redevelopment scheme some years ago. I agreed to provide details of what
was sold to whom and when but not the terms of sale these are covered by
the Local Government (Access to Information) Act 1985 Schedule I
Exemptions. However where a sale is completed the enquirer can obtain
price information on price from the Land Registry; but this only applies to
post January 2000 transactions, and so would not apply to our case
Frank Whiting, Bromley has entered into a contract to sell Tesco land for a new store. The
LB Bromley contract is conditional on planning (now granted), stopping up orders and
vacant possession (which may require a CPO). It is unlikely to go
unconditional for a year or more. The Council and Tesco are particularly
keen to keep the sale price confidential. 2 FoI requests have been received;
to disclose the sale price, and to supply copies of all correspondence
between the Council and Tesco (or their representatives). We have taken
the line that all matters relating to the land transaction are commercially
sensitive and therefore exempt. This view is supported by internal lawyers
but they have yet to respond to the applicants. It is accepted that planning
correspondence will be disclosed. I will let you know if anything changes or
our view is challenged.
Tony Woods, The Council has not received any property requests to date. Our procedures
Wolverhampton require consultations with our legal colleagues if there is any doubt.
Abbreviations used in the analysis.
CC County Council
CPO Compulsory Purchase Order
DA Development Agreement
DC District Council
FoI Freedom of Information Act
GOYH Government Office, Yorkshire and Humberside
LB London Borough
MBC Metropolitan Borough Council
MDC Metropolitan District Council
References and supplementary information.
1. Carmarthenshire Q&A.
2. East Staffs
3. Glasgow Database.
4. Havant beach kiosk evaluation.
5. Havant beach kiosk response.
6. Hertfordshire CC guidance.
7. Northumberland guidance.
8. ODPM guidance.
9. Reading draft DA clause.
10. Stockport guidance.
11. Warwickshire Protocol.
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Other references and websites
12. EG 15/01/2005 page 92
13. Mole Valley DC; VOA FoI presentation slides on paper only.
14. Scottish FoI Guidance available the Scottish Procurement Directorate website.
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