The Legal 500

2005 witnessed a major legal development in the rapidly burgeoning field of information law. New Year

Freedom of Information: an opportunity and a threat
FOIA is intended to be the driver for a public sector revolution, blowing away the traditional Westminster culture of secrecy and leaving in its place clear legal duties of openness and transparency – in short, replacing ‘need-to-know’ with ‘right-to-know’. If the law works, then it should mean increased transparency for major policy decisions, the delivery of public services and accountability for public spending.

As a result of FOIA, members of the public have the legal right to access a huge array of information on the actions of public bodies – from central government departments to parish councils. Anyone can ask for information, and requests can range from how much your local council spent on paperclips last year, to the grounds for appointing a particular contractor to build a school or hospital. Even copies of contracts and invoices may be disclosable.

FOIA imposes a duty on every public body in the country to make available any information at all, if it is holding it. There are 23 potential exemptions to this duty, but relying on an exemption will only be allowed if there is a justifiable reason. Many of the exemptions are also only available where the public interest permits.

Significantly, the new rules are not just about the public sector. FOIA also impacts business, representing both an opportunity and a threat. Companies now have an opportunity to learn more about how public sector customers operate and what they want and expect from their suppliers. They also have the means to get hold of information that government may hold about competitors. The threat here is that competitors will themselves be able to ask for information about other companies supplying government, including information that is confidential or commercially sensitive.

FOIA and copyright and trade secrets
One specific area of concern relating to disclosures of information under FOIA is the likelihood of copyright material or trade secrets being made available to competitors. All kinds of copyright material will be held by public bodies in the course of their dealings with suppliers, and suppliers will frequently provide information to government which they would consider a trade secret or otherwise commercially sensitive. In the hands of a public authority, much of this material will now be accessible to competitors under the FOIA regime. What implications does this have for companies’ copyright and other commercially sensitive material?

Exemption under s43 FOIA: commercial interests
The first part of the answer lies in whether copyright in a document, or trade secret information, will make it eligible for FOIA exemption under s43 FOIA. Section 43 applies to information the disclosure of which would, or would be likely to, prejudice a company’s commercial interests. The exemption contains two limbs, the first of which applies to trade secrets specifically, the second to commercial interests more generally. This sounds helpful.

Importantly, however, the application of the exemption is subject to the public interest. In many cases, there will be a strong public interest in establishing that a public authority is getting value for money from its suppliers, and that any public procurement of services was carried out fairly. This will tip the balance in favour of disclosure, subject to countervailing public interest factors applying to the copyright or commercially sensitive material in question.

Copyright, Designs and Patents Act 1988
The second part of the answer lies specifically in whether copyright in a document will prevent it being copied by a public body per se for the purposes of answering a FOIA request. The position is not as straightforward as you might think. This is because of the wording of the Copyright, Designs and Patents Act 1988 (CDPA). Section 50(1) CDPA states:

‘Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright.’

Schedule 1, s6 of the Copyright and Rights in Databases Regulations 1997 (CRDR) says exactly the same thing in relation to the infringement of database right.

At first glance this might appear to allow the copying of copyright and database right material by public bodies for the purposes of answering FOIA requests. By a strict reading, however, the two sections do not apply to FOIA because FOIA does not ‘specifically authorise’ copying. It requires information to be ‘communicated’ on request, but it does not specify how communication must be made.

Under s11 FOIA, applicants can express a preference for information to be communicated either by way of a copy, or the opportunity to inspect a record containing the information, or a digest or summary of the information. However, authorities need only give effect to such a preference where ‘reasonably practicable’, and in determining this they are entitled by s11(2) FOIA to take into account ‘all the circumstances’. It is legitimate to argue that it is not reasonably practicable to supply a copy of a document if doing so would be an infringing act under the CDPA or CRDR. On this basis, an authority would instead have to allow the applicant to inspect the original material, or produce a summary of it.

This sounds like good news for copyright owners in the private sector. However, the position is far from clear. It cannot be right to say that FOIA is intrinsically subordinate to the law of copyright.

This is because:

1) in some cases an authority will be unable to satisfy its FOIA obligations by summarising information as opposed to providing copies; and

2) in other cases it will be able to avoid its FOIA obligations altogether by effectively hiding behind copyright.

In the first case, the provision of a summary will not necessarily satisfy the FOIA obligation to ‘communicate’ information. This is because the definition of ‘information’ in FOIA is ‘information recorded in any form’ and in many cases the form or medium will be inseparable from the information itself. Information that comprises tables of figures, for example, may be impossible to summarise without in some way changing it, either because the summariser will summarise subjectively, or because a summary will simply not convey all the elements of the original. Some information, particularly information which is quantitative, cannot easily be distilled. There is also the problem that providing a summary may itself infringe copyright and database right. An analogous example might be a transcript of a video that, while conveying the text of a speech, does not convey the inflection or facial expressions of the speaker, and therefore does not accurately convey all the information in the original.

In the second case (where authorities might seek to hide behind copyright), the task of summarising information will usually be much more time-consuming than producing copies. A request that might be answered in a couple of hours by photocopying may take much longer to answer by summary. In many cases, this will take the request over the £600/£450 cost threshold, which applies as an exemption under FOIA (requests that cost more than this are deemed excessive and authorities may decline to answer them, or elect to charge a fee). This means that the authority will be entitled to refuse the request simply because of the necessity of summarising to avoid copyright or database right infringement.

Liability for copyright infringement
The courts are unlikely to countenance a position that circumvents individuals’ rights under FOIA because of the need to avoid copyright or database right infringement, and this leads to the second part of the question of what implications FOIA has for companies’ copyright material.

Copyright and database rights will continue to subsist in a work even if disclosed as part of a FOIA request. An applicant who copied a copyright or database right work obtained under FOIA will still be liable for infringement if they copied the work without lawful authority. Nothing within the FOIA rules will act to put disclosed material into the public domain or confer a right on any other person to copy or otherwise infringe a third party’s rights in the material.

This means that while disclosure of information under a FOIA request may be undesirable in practical terms, it will not affect your intellectual property rights in that information.

In the author’s view, therefore, the exceptions under s50(1) CDPA and Schedule 1, s6 CRDR will permit copying for the purposes of complying with FOIA, although the point remains untested.

Conclusion
Companies need to understand that the default position for public bodies is to disclose everything unless there is a permissible reason for withholding it. Only by working with your customers can you manage what will sometimes be conflicting risks – your own business risk, and your customer’s FOIA compliance risk. Contracts under negotiation now and in future should build this in; contracts already signed may very well benefit from variation. (See box, above.)

It is imperative that all private sector bodies start thinking now about how to deal with FOIA in their dealings with the public sector. They should also be looking at how the FOIA exemptions might apply to information about their businesses and at how they will need to deal with the public sector on FOIA matters.

Marcus Turle is a solicitor specialising in privacy and information law at City law firm Field Fisher Waterhouse. He is author of the leading practitioner’s guide to the subject, Freedom of Information Manual (published by Sweet & Maxwell), and the editor of Freedom of Information Journal, the only legal journal available dedicated to this area (contact Marcus.Turle@ffw.com for a free sample copy).