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Wake-up call – Dealing with sensitive information

15 September 2011
Wake-up call – Dealing with sensitive information

When you hand over information about your business to public authorities it may not be as private as you'd like to believe. Data protection expert Alison Deighton explains your rights

THE PROBLEM Hotel and restaurant operators are required to submit certain information about their businesses to public authorities. This could be in relation to premises licence applications and food safety inspections. In some circumstances businesses will expect such information to be made public (for example, details about premises licence applications). However, public authorities are also required to disclose information in response to Freedom of Information Act (FOI) requests which could result in the disclosure of commercially sensitive information.

THE LAW Under FOI, any member of the public has the right to request information held by a ‘public authority' and they do not have to explain the reason for making the request. If a request is received, the public authority must disclose the requested information unless an exemption applies.

The definition of ‘public authorities' in the FOI Act includes local authorities and the police. There is no restriction on the type of information that may be requested - the only test is whether the public authority ‘holds' the information.

There are a number of exemptions from the requirement to disclose information, including where disclosure would result in an actionable breach of confidence or would prejudice a person's commercial interests. Public authorities have the sole right to decide whether an exemption applies.

EXPERT ADVICE You should carefully consider what information you provide to public authorities, because all information is liable to be disclosed under FOI. It will be important when deciding whether to provide information, to balance the need to protect the business's commercial interests with your legal obligations to comply with a request for information - particularly if the request for information relates to a licensing issue or an inspection or investigation.

If you are unsure whether sensitive information has to be disclosed it would be wise to seek legal advice.

If you are legally obliged to provide commercially sensitive or confidential information to a public authority, you should ensure that the public authority is aware that you consider the information to be commercially sensitive, or confidential, and that it should not be disclosed if a FOI request is made.

Although the final decision about whether information will be disclosed lies with the authority, flagging the fact that you consider the information to be exempt should ensure that the authority considers the application of potential exemptions before making any disclosure.

You should also ask local authorities to notify you before any disclosure of information is made pursuant to an FOI request and to provide copies of any information disclosed.

CHECK LIST Before providing information to public authorities, ask yourself, "am I happy if this is made public?" as all information is potentially disclosable under FOI. If you would prefer the information not to be disclosed, consider whether you are legally obliged to provide the information.

â- Seek assurances from the public authority that it will consult with you before responding to any request for information relating to your business.

â- Only public authorities are obliged to comply with FOI requests. If a business receives a FOI request there is no legal obligation to disclose the requested information.

BEWARE Remember that all information held by a public authority could potentially be made public. This will include details of food safety inspections, smoking ban investigations and licensing issues, but also wider information about your business that has been disclosed to a public authority in the course of a licence application or inspection.

Alison Deighton is an associate and head of data protection and privacy at law firm TLT

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Jacobs Media Group is honoured to be the recipient of the 2020 Queen's Award for Enterprise.

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