Explanation of exemptions applied – sections 41 and 43
The information is question was submitted to the Commission on the basis that it is provided
in confidence. It also contains commercially sensitive information.
Section 41(1) of FOIA (‘Information provided in confidence’) provides that information is
exempt information if: it was obtained by the public authority from any other person
(including another public authority); and, disclosure of the information to the public by the
public authority holding it would constitute a breach of confidence actionable by that or any
other person. The Commission considers that both requirements are met. We consider that
it would be detrimental to the provider of the information if the information were disclosed
and that disclosure would constitute an actionable breach. We do not consider there to be a
public interest which would lead the court to refuse to uphold the duty of confidentiality in
relation to this information.
The information is also of a commercially sensitive nature.
Section 43(2) of the FOIA (commercially sensitive information) provides that information is
exempt information if: its disclosure under the FOIA would, or would be likely to, prejudice
the commercial interests of any person (including the public authority holding it). Section 43
is a qualified exemption so we are required to consider whether maintaining the exemption is
in the public interest.
Factors in favour of disclosure There is a legitimate public interest in promoting the transparency of the Commission and in
making information available to the public.
Factors in favour of maintaining the exemption The information in question related to the operation of a commercial company and
concerned the direction of their business. This business was sold as a going concern and
the considerations may still be relevant to this entity.
The information relates to matters specific to this company and does not contain, for
example, questions of policy or decision making or matters related to social responsibility
which there would be a public interest in releasing.
We also consider that disclosing information of a commercial nature could discourage
licensees and stakeholders from freely providing information to the Commission in future,
which would prejudice the Commission’s ability to monitor and regulate its licensees.
Weighing the balance Whilst the Commission aims to be open and transparent, there is a need to preserve the
confidentiality of information submitted on that basis and to be mindful of the commercial
sensitivities of information that is held.
Having weighed these issues, the Commission is of the view that the public interest is best
served through maintaining this exemption.