Information for suppliers and contractors
This note is intended for Suppliers and Contractors dealing with public sector purchasers. It explains how FOIA applies to the authority and how the authority will approach the handling and disclosure of information relating to Suppliers and Contractors from 1 st January 2005 .Q1. What is the Freedom of Information Act?
The Freedom of Information Act 2000 (FOIA) comes into force on 1 st January 2005 and will change the way that Liverpool City Council approaches the handling and disclosure of all recorded information about its Suppliers and Contractors. The FOIA aims to create a greater culture of openness, accountability and transparency in public life by creating an unprecedented right of access to the information held by public authorities.
Q2. Which public authorities are covered by FOIA?
The FOIA applies to public authorities listed in Schedule 1 of the Act, (includes for e.g. local authorities, NHS, schools, colleges, universities, fire, police and government bodies), and companies which are either wholly owned by the Crown or by any public authority listed in Schedule 1. This amounts to approximately 130,000 public authorities throughout the UK .
Q3. What is a FOIA Right of Access?
The FOIA gives everyone the right of access to all recorded information held by, or on behalf, of Liverpool City Council (such as the Contractor) unless one of the exemptions set out in the Act applies, (see below). The r equest for information can originate from anywhere in the world, and can be made by any individual, company, journalist or community group. The request must be in writing or another "recordable" format (e-mail would be acceptable); provide a name, address for correspondence and specify the information required.
Q4. What Kind/ types of information are covered by FOIA?
The FOIA is fully retrospective, which means that it covers all information already held in a recordable format by Liverpool City Council irrespective of how old it is. FOIA therefore c overs information contained in a hard copy (letters, paper files), electronic files (including e-mail), video and audio formats (including CCTV), as well as any information created after 1st January 2005, subject to certain exemptions, (see below).
Q5. How will Public Authorities respond to a FOIA request?
Liverpool City Council is under a statutory duty to initially confirm or deny that it holds the information and then communicate the information within 20 working days of receipt unless one of the exemption applies, (period starts from day after the request is received). As this is a statutory obligation, Liverpool City Council will not be able to transfer, delegate or contract out of its duties under FOIA to a third party.
Q6. If I provide information relating to our Supplies or Services to the authority as part of our tender submission, will this information be disclosed under the Freedom of Information Act?
All information held by Liverpool City Council is within the scope of FOIA and must be disclosed on request unless the council determines that an exemption applies. For example, Liverpool City Council would be under a duty disclose information about a contract with a grounds maintenance company, unless that information was covered by an exemption.
Q7. Do Suppliers and Contractors have to comply with FOIA?
If Liverpool City Council gets a Right of Access request that includes information held by a Supplier or Contractor on behalf of the council , the Supplier or Contractor concerned shall have to comply with the Act and supply that information to the council for it to be able to communicate a response. The Supplier/ Contractor will be expected to supply that information in good time to ensure that the council does not breach the Act. The Supplier/ Contractor will be receiving further information on this from The Procurement Unit shortly. A Supplier/ Contractor who thinks they will be affected by the FOIA as they hold information on behalf of the council should contact their principal contact at Liverpool City Council as soon as reasonably practicable to ensure that they get the appropriate training and support.
Q8. What if a FOIA Right of Access goes directly to Suppliers/ Contractors?
This needs to be directed to your main contact at the council , who shall deal with the request (if applicable) under its Freedom of Information policy. Suppliers and Contractors should not deal with FOIA requests themselves, even if it may relate to information it holds on behalf of Liverpool City Council or vice versa.
Q9. Are there any exemptions that allow public authorities to refuse to disclose information?
The FOIA exempts certain types of information from the Right of Access. There are two types of exemptions:
Absolute Exemption, (such as information that is reasonably obtainable elsewhere, (i.e. in a publication scheme), information provided in confidence and where release of the information would amount to contempt of court). Where information falls within the terms of an Absolute Exemption , the council may refuse to disclose the information and, in some circumstances, can also refuse to confirm or deny whether the information exists. Secondly,
Qualified Exemptions, (such as information intended for future publication, (i.e. there are plans to publish the information in the future, and it is reasonable, at the time of the request, not to disclose it immediately) and information relevant to criminal investigations and criminal/civil proceedings. Note that Qualified Exemptions will only apply in circumstances where the authority can prove that there would be a real and significant damage (prejudice) to the authority or to other people if the information were made public ("Public Interest Test").
Q10. What is the Public Interest Test?
Important to note that, public interest does not mean what is of interest to the public but rather, what is in the interest of the public, which will evolve with time and changing circumstances. Liverpool City Council must consider whether, in all the circumstances of the case, the public interest in withholding the information is outweighed by the public interest in disclosing the exemption. If the two are evenly balanced, the presumption will be in favour of disclosure.
Q11. Will Suppliers/ Contractors be consulted before their information is disclosed?
It is the council's decision whether or not to disclose contractual information, but it will consult to take the views of Suppliers/ Contractors into account when making a decision under FOIA. Liverpool City Council strongly recommends that if a Supplier/ Contractor considers information would be exempt under FOIA, it identifies for Liverpool City Council the exact nature and location of this information in their tender.
Q12. What if we include/ have a confidentiality clause in the contract to prevent disclosure?
The confidentiality obligations in contracts will be subject to the council's statutory obligations under FOIA. T here will have to be genuine commercial and/or legal reason as to why information should be treated as confidential . Information provided in confidence will only be exempt if disclosure of that information would give rise to an actionable breach of confidence. This is a narrow and specific legal exemption, which applies in very limited circumstances defined by the courts through complex case law and you should therefore not assume this exemption shall apply just because information is confidential and it is an Absolute Exemption.
Q13. What information is therefore likely to be disclosed/ not disclosed?
Most likely exemptions applying to information supplied or held by Suppliers/ Contractors include the Confidentiality exemption (see above), or where information constitutes a trade secret or if disclosure would prejudice the commercial interest of any person, including the authority.
Information likely to be disclosed under FOIA: Standard contractual terms, Liverpool City Council's general procurement/ commercial activities, nature of the supplies, service or works which is the subject of the contract including appropriate parts of any Invitation to Tender, overall contract price on particular supplies, services or works, performance standards in a particular contract and completion or administration of a particular contract.
Information likely to be refused under FOIA: All subject to one of the exemptions applying and where there
is also no overriding public interest in releasing information. Trade secrets (i.e. secret formula or recipe, sensitive commercial interests which would prejudice either Liverpool City Council or Suppliers/ Contractors, (i.e. unit prices of goods, or information that could identify profit margins), personal privacy - disclosure of information would breach the Data Protection Act 1998 (i.e. CV's of Suppliers personnel) and information given in confidence and disclosing would constitute an actionable breach of confidence (i.e. technical business information).
For further information, please visit www.foi.gov.uk