Freedom of Information : This page has been downloaded from the Campaign for Freedom of Information "http://www.cfoi.org.uk/cc291097pr.html"
|| The Campaign for Freedom of Information
Embargoed 12.00 midday, Wednesday 29 October, 1997
Government departments "misguided" on commercial confidentiality.
Government departments have little understanding of the term "commercially confidential" and often cite this without good cause to keep information secret, according to the Campaign for Freedom of Information.
Some departments refuse to release the value of individual contracts with outside firms, claiming that this information is commercially confidential - yet other departments are happy to release such details. A survey of parliamentary answers (see Appendix) showed that:
- Some had refused to give any information about the costs of contracts they had let, for example for public opinion surveys, management consultancy or head hunting services;
- Others gave a single figure for the amount spent on all contracts of a particular kind, but refused to say how much went to individual firms;
- Others revealed the total amount paid to particular firms, but refused to give the value of an individual contract; and
- Some provided full details including the value of individual contracts.
The examples, which pre-date the election, were cited in paper by the Campaign's director, Maurice Frankel, at a conference on the implications for business of the government's proposed Freedom of Information (FOI) Act. (1) He said "departments sometimes admit that they have no idea how to judge whether particular information is or is not commercially confidential, in the sense of revealing commercially valuable information to competitors. They just find it simpler to label all information about identifiable companies and products as secret". He said the government should adopt one of the principles applied under the American FOI legislation: openness is part of the price of doing business with government.
The Open Government code of practice, introduced in 1994, has sometimes helped people challenge such claims:
- Earlier this year, the Parliamentary Ombudsman (who supervises the code) criticised the Ministry of Agriculture, Fisheries and Food for refusing to release a list of animal carcass incinerators with contracts to dispose of BSE infected cattle. MAFF claimed the names of the firms were commercially confidential, and refused to release them for nearly six months, changing its mind only when it realised that they were in the public domain already.(2)
- In the same report the Ombudsman described the Department of Health's refusal to release information about the number of NHS prescriptions for various classes of drugs. The Department told the pressure group Social Audit that the data "is considered 'commercial-in-confidence' and figures on individual products or where a manufacturer can be identified are not supplied". It also claimed that the total number of prescriptions for a particular medicine throughout the NHS could not be released without breaching 'patient confidentiality' - a bizarre claim since the aggregate, anonymised information could not conceivably reveal the identity of any individual patient. Ten months later, after a prolonged investigation by the Ombudsman, it accepted that these arguments were invalid and agreed to release the information.
However, in other cases the Code had failed to elicit information, partly because it allows departments to withhold information which has been supplied to them voluntarily by companies, including such matters as reports into fatal accidents volunteered to the Health and Safety Executive by the firms concerned but not disclosed either by the HSE or the firm to the victim's family.
The Campaign said an FOI Act would need to define 'commercially confidential' strictly; ensure that this information could nevertheless be disclosed on public interest grounds; and avoid the code's "catch-all" which permits any information supplied in confidence to government by an outside body to be withheld.
The Campaign also criticised a two Department of Trade and Industry booklets (3) published in 1996 which urged businesses to introduce a system of security classification to prevent the disclosure of virtually all their information. The approach, which appears to be directly based on the Whitehall system for classifying official secrets, suggests that most company information should be classed into one of three security bands. It proposes:
- the highest classification "SEC 3" should be used for information "whose unauthorised disclosure (even within the organisation) would cause serious damage to the interests of the organisation"
- the next classification "SEC 2" should be used for information whose release could cause "significant harm" to the company
- the lowest classification level "SEC 1" should be used for information "whose unauthorised disclosure, particularly outside the organisation, would be inappropriate and inconvenient. This is routine information which an organisation simply wishes to keep private." It adds that this "refers to the majority of information".
Mr Frankel said: "This approach is designed to encourage a culture of secrecy in which all inconvenient information is suppressed - a policy bound to generate suspicion and mistrust on the part of the public, and to damage a company's relations with the community. The two booklets stress the need to protect all information from disclosure but make no reference to the need to respond properly to legitimate requests from customers, local residents, employees, the press or anyone else affected by a company's operations."
The Campaign said that a Freedom of Information Act would give the public greater access to information about the way government regulated business, increasing the public's rights to information held about safety and environmental problems, the provision of services by privatised utilities, and many other matters. But it would also allow businesses themselves to obtain more information from government, opening up new commercial opportunities and giving them greater protection against arbitrary action by government.
1. 'The Proposed Freedom of Information Act. The Implications for Companies and Government'. The conference takes place on Wednesday 29 October at the Gloucester Hotel, London SW7, and is organised by City and Financial Conferences.
2. Parliamentary Commissioner for Administration. First Report Session 1997-98, Selected Cases 1997 Volume 3. HC 132
3. "Protecting business information: understanding the risks" and "Protecting business information: keeping it confidential". The booklets have been produced by a group of companies and government bodies on behalf of the DTI, and published by the DTI's Information Security Policy Group.
In October 1994 (former) ministers were asked to identify and give the costs of each public opinion survey commissioned by their departments.
Most departments identified the survey titles and the bodies which carried them out, but several refused to give any information about costs at all:
- "The costs of the individual surveys are subject to commercial confidentiality" Robert Hughes, Public Services minister, 26.10.94, col.611
- "Information on the fee paid cannot be disclosed due to commercial confidentiality considerations" Ian Taylor, DTI minister, 26.10.94, col 650
Some gave a single aggregate figure for the total cost of all the surveys:
- "It is not possible for commercial reasons to give the cost of each survey individually. However in total these surveys cost £190,000" Mr Jack, MAFF, 26.10.94, col 622
- "The fee paid to individual contractors is commercially confidential and therefore cannot be detailed. The total cost of the 27 surveys listed was £1.061 million." Ian Lang, Secretary of State for Scotland, 27.10.94, col 852
But some departments were prepared to give the cost of individual surveys:
- "One opinion survey has been conducted on behalf of the Foreign and Commonwealth Office...This was carried out by Gallup...and the objective was to learn about attitudes in the United Kingdom to Bosnia. The fee paid to Gallup was £1,292.50" Alistair Goodlad, Foreign Office, 27.10.94, col 761
- "The public opinion surveys conducted since 1 October 1992 by the Department of Social Security and its agencies are as follows:
- Benefits Agency.
Title: 1993 BA National Customer Survey... Contractor: Public Attitude Surveys Ltd... Cost: £187,500
- Contributions Agency.
Title: 1992 CA Customer Satisfaction Survey... Contractor: British Market Research (BMRB) International... Cost: £75,000" [a number of other studies were also listed and costed], Social Security minister, William Hague, 25.10.94, col 562
In July 1995 (former) ministers were asked which firms of consultants employed by their departments had been paid more than £1,000 per day:
- The information was provided by the minister responsible for the Cabinet Office and Office of Public Service, who stated: "In 1994-95 the following firms of consultants were employed on contracts costing more than £1,000 per consultant per day including expenses and VAT. Coopers and Lybrand; Domino Consultancy; Human Assets Limited; International Computers Limited; Moores Rowland; PA Consulting; Pearn Kandola; Price Waterhouse." John Horam, 17.7.95, col 903
- But faced with the same question the Transport Minister, Steven Norris, replied: "For reasons of commercial confidentiality, the Department does not reveal information about the fees paid to individual consultants." [12.7.95, col 571]
Ministers were asked about the contracts let to leading management consultancies:
- Some refused to say how much had been paid to individual firms, even when each firm received several contracts. Only an aggregate figure for all contracts during the period was provided (eg Chancellor the Duchy of Lancaster, 30.6.94, col 662)
- Others provided the total value of contracts let to each individual firm, but withheld information where a firm had received just a single contract (eg MAFF whose reply stated "Single contract cost not given for reasons of commercial confidentiality" 4.7.94, col 28)
- Others provided full details of the amounts paid to individual firms, including the cost of individual contracts (eg Department of Education 24.6.94 col 339)
Ministers were asked about the fees paid to headhunters for helping to fill particular posts:
- Some refused to specify the fees (eg "The value of individual contracts is confidential" William Hague, Social Security minister, 31.1.95, col. 623)
- Others revealed the individual fees (eg Steven Norris, Transport minister revealed that £31,800 had been paid to Saxon Bampfylde International for helping in the recruitment of the head of the Driver and Vehicle Licensing Agency. 30.1.95, col 482)