General considerations

This module will test your general understanding of key elements of the section 43 exemptions. You should assess individual parts of requested information carefully against any harm you think is likely to occur, taking into account all relevant factors. When assessing the likelihood of harm to the commercial interests of other organisations, you must consult them as soon as possible, but you need to make the final decision on how to respond to any FOI request. You must be able to show a link between disclosing requested information or revealing whether it's held and any likelihood of harm to commercial interests. In the next module, you can assess how you apply these elements to the specific request to take an overall approach. Read the “more information” section to give you a further understanding of each question.

Good

You always thoroughly consider all of the factors relevant to whether you could release the requested information or any part of it.
You always consider factors relevant to establishing whether the requested information is a trade secret.
You always consider whether there is a commercial interest in the requested information, and not just a financial interest.
You always consider whether there is a logical connection between disclosing the requested information and the likely harm or prejudice to commercial interests.
You always thoroughly assess the likelihood of harm or prejudice (ie "would" or "would be likely" to prejudice) to commercial interests.
You always take an objective and evidence-led approach to assessing the balance of the public interest.
Where applicable, you always consider factors relevant to relying on the neither confirm nor deny exemption in section 43(3).

Adequate

You give some consideration to all of the factors relevant to whether you could release the requested information or any part of it.
You give some consideration to factors relevant to establishing whether the requested information is a trade secret.
You give some consideration to whether there is a commercial interest in the requested information, and not just a financial interest.
You sometimes consider whether there is a logical connection between disclosing the requested information and the likely harm or prejudice to commercial interests.
You sometimes thoroughly assess the likelihood of harm or prejudice (ie "would" or "would be likely" to prejudice) to commercial interests.
You usually take an objective and evidence-led approach to assessing the balance of the public interest.
Where applicable, you usually consider factors relevant to relying on the neither confirm nor deny exemption in section 43(3).

Unsatisfactory

You rarely consider all of the factors relevant to whether you could release the requested information or any part of it.
You rarely consider factors relevant to establishing whether the requested information is a trade secret.
You rarely consider whether there is a commercial interest in the requested information, and not just a financial interest.
You rarely consider whether there is a logical connection between disclosing the requested information and the likely harm or prejudice to commercial interests.
You rarely assess the likelihood of harm or prejudice (ie "would" or "would be likely" to prejudice) to commercial interests.
You rarely take an objective and evidence-led approach to assessing the balance of the public interest.
Where applicable, you rarely consider factors relevant to relying on the neither confirm nor deny exemption in section 43(3).

More information

Other legislation, such as the Local Government Transparency Code 2015, can impact on the disclosure of commercially sensitive information. Where relevant, you should take this into account when considering what you can and should disclose. If the general public can access the information, then this may also diminish the likelihood of any prejudice arising from disclosure under FOIA. Assess whether the commercial sensitivity of the information has diminished over the passage of time.

More information

A trade secret maybe a technical secret or a business secret. Technical information, such as about an invention, recipe or formula, are more likely to be trade secrets. Business information, such as costs, pricing, plans or promotional strategies, are less likely to be trade secrets.You may wish to obtain independent advice as to whether the requested information is a trade secret. If information is genuinely a trade secret, there is no additional requirement to consider whether its disclosure would result in harm or prejudice. However, you must still carry out a public interest balancing exercise to determine whether to disclose the information.

More information

Whether a financial interest also includes a commercial interest will depend on the facts of the individual case. Examples of activities which might cause you to hold commercial information include: procurement, public private partnerships, regulation, policy development and implementation. While most commercial activity directly relates to the purchase and sale of goods and services, you might be asked for information which is indirectly linked to commercial activity and this information may also fall within the scope of this exemption.

More information

You should carefully consider the requested information and any other relevant factors to establish a link between disclosing it or where applicable, revealing whether it's held, and the likely harm to the relevant commercial interests.

More information

You must be able to show how and why disclosing the requested information or where applicable, revealing whether it's held, has the potential to prejudice someone’s commercial interests, including that of your organisation, if relevant. This is known as the prejudice test. You need to identify what the harm is and why it "would" or "would be likely to" occur as a result of disclosing the requested information, or revealing whether it's held. If the requested information was supplied to you by a third party such as a supplier or contractor, you should reflect their views by consulting them. Do not speculate on the likely harm disclosing the information could have on their commercial interests.

More information

You must consider whether the public interest in maintaining the exemption outweighs the public interest in disclosing the requested information, and if the balance is equal, you must disclose the information. You must ensure that the public interest arguments in favour of maintaining an exemption relate specifically to that exemption and the particular factors relevant to that request. You may wish to consider concepts such as; competition, reputational damage or loss of customer confidence, or your organisation's ability to obtain value for money.

More information

Section 43(3) is concerned with the consequences of confirming or denying that you hold particular information, rather than with the content of the withheld information. Where applicable, you must be able to show that the act of confirming or denying you hold the requested information could harm someone’s commercial interests. For example, a supplier or contractor could be concerned that revealing whether you hold particular information about them could itself harm their commercial interests. You must also be able to show that the public interest in neither confirming nor denying is stronger than that in revealing whether the information is held.