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Ministry of Justice

Procurement

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How requests for certain kinds of information should be treated within the different phases of procurement processes.


What information does this cover?

These working assumptions aim to guide you on how requests for certain kinds of information should be treated within the different phases of procurement processes, and in the period immediately after a contract has been completed. Information generated by and given to public authorities as part of the process of procuring goods and services from commercial suppliers is referred to as 'procurement information' throughout these working assumptions.

Working assumption

The question of whether 'procurement information' should be released in response to a request made under the Freedom of Information Act or the Environmental Information Regulations will depend on what kind of information it is, and in what phase of the procurement process the information is requested. Annex A contains five broad categories of information and details when it is appropriate to release information. Annex B provides some useful worked examples.

Reason for the assumption

As well as the information provided in Annex A, you may want to refer to guidance on section 43 (commercial interests) and section 41 (information provided in confidence), which are important exemptions to consider when dealing with a request for procurement information.

Section 43(2) is likely to be particularly significant with regard to procurement information. This provides that information is exempt information if its disclosure would, or would be likely to, prejudice the commercial interests of any person. Crucially this can include the public authority holding it. Where section 43(2) is engaged, it is important that public authorities consider both the potential commercial prejudice to themselves and the commercial prejudice to third parties.

A commercial interest relates to a person's ability to successfully participate in a commercial activity and there are a number of ways in which disclosure of procurement information could be commercially prejudicial to both departments and third parties. For example would disclosure:

  • prejudice the ability of departments to achieve value for money?
  • damage the business reputation of or the confidence that suppliers have in a department or a third party?
  • weaken a department's or third party's position in a competitive environment?
  • reveal the financial position of a third party in a way that is detrimental to its commercial interests?

Section 41 (information provided in confidence) may also apply to some sensitive commercial information provided to public authorities by third parties or contractors. This exemption only applies where a breach of confidence would be 'actionable'. Although the Freedom of Information Act does not provide a definition of what might qualify as an 'actionable breach' for the purposes of section 41, it is assumed a breach of confidence will only be 'actionable' if a person could bring a legal action and be successful. Where departments hold information which might be subject to a duty of confidence or where it is possible that disclosure might constitute an actionable breach of confidence then they should consult their legal advisers. The Clearing House should be involved if the cases raise wider sensitivities, or the department thinks that it is considering a novel issue.

Referral points

Where information is requested that is not covered by the assumptions, or you think for any reason that the assumption should not apply, then the request must be referred to the Clearing House.

Whenever information supplied to your public authority by a third party (for instance, a supplier) is requested, you should always seek its views about the sensitivity of the information in question. The final decision on the release or withholding of information rests with the public authority that holds the information. The views of third parties can inform your decision-making, but they cannot bind you, and you may sometimes find your authority releasing information against the wishes of the third party that supplied it.

For more detailed information about freedom of information and procurement information please see the Office of Government Commerce's freedom of information (civil procurement) policy and guidance.