Case Summary and Outcome

The U.K. Information Tribunal held that a contract between a public authority and a third party contractor is not subject to exemptions primarily intended to protect third parties when the exemption arguments are not raised by the third party contractor itself but rather the public authority on behalf of the third party contractor.

This analysis was contributed by Right2Info.org.

Facts

In 2005, under the authority of the Freedom of Information Act of 2000 (FOI Act), Brian Hutton of the Belfast Telegraph wrote to the Derry City Council requesting information about the city’s agreement with Ryanair Airlines regarding Ryanair’s payments to the city for the use of Derry City Airport. After the Council refused to disclose the information, Hutton filed a complaint with the Information Commissioner, who issued a Decision Notice ordering the city to disclose the requested information. The Council appealed to the Information Tribunal, citing exemptions under Articles 29, 41, and 43 of the FOI Act. At no point was Ryanair made party to the dispute.

Decision Overview

The Tribunal concluded that the information was not exempt under any of the three articles cited by the Council: (1) Article 43, which exempts information if its disclosure would prejudice “the commercial interests” of anyone involved; (2) Article 29, which exempts information if its disclosure would prejudice “the economic interest of the United Kingdom”; and (3) Article 41, which exempts information if its disclosure would “constitute a breach of confidence” by any of the parties involved.

First, addressing the Article 43 claim, the Tribunal assessed the commercial interests of both the City Council and Ryanair, concluding that it was “not prepared to speculate” about the commercial interests of a third party (Ryanair) when the third party was not a party to the suit, and that any commercial interests of the Council were outweighed by the public’s interest in having the information disclosed. The Article 43 exemption therefore did not apply.

Second, the Tribunal dismissed the Article 29 exemption argument on the grounds that the same arguments against finding an Article 43 exemption would also weigh against finding an Article 29 exemption.

Finally, the Tribunal considered whether the Ryanair information could be considered “information obtained by the Council from a third party” for the purposes of Section 41, and if so, whether disclosure would “constitute actionable breach of confidence”. The Tribunal concluded that the agreement between the Council and the third party was a standard contract, and that such a “written agreement between two parties did not constitute information provided by one of them to the other”. In so concluding, the Tribunal acknowledged that effectively, “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” (para. 31). However, the Tribunal argued that “contracts will sometimes record more than just the mutual obligations of the contracting parties,” and that in such instances “it may be that material of that nature could still be characterized as confidential information ‘obtained’ by the public authority”.

Since the disputed information was not obtained by the Council, it did not give rise to an obligation of confidence that would fall under the Article 41 exemption.