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You may find some of the questions in this module similar to those in the previous one, because it is designed to test how well you can apply those previously highlighted key elements of section 43 to a specific request. Section 43 can only be applied to protect a trade secret or other commercial interests. If you think the requested information is a trade secret, consider this separately in the first instance. There is no additional requirement to assess the likelihood of harm or prejudice if the requested information is a trade secret. When relying on any of the section 43 exemptions, you must also assess the balance of the public interest in upholding the exemption. Read the “more information” section to give you a further understanding of each question.

 

Good

  • You always identify whether the requested information is a trade secret.
  • You always identify the commercial interest in the requested information.
  • You always identify the link between the requested information and the harm or prejudice to commercial interests that is likely to occur.
  • You always identify how likely (ie "would" or "would be likely to") disclosure would harm or prejudice the relevant commercial interests.
  • You always identify the public interest factors both in favour of and against upholding the relevant exemption.
  • You always identify when it is appropriate to rely on the neither confirm nor deny exemption in section 43(3).

Adequate

  • You usually identify whether the requested information is a trade secret.
  • You usually identify the commercial interest in the requested information.
  • You usually identify the link between the requested information and the harm or prejudice to commercial interests that is likely to occur.
  • You usually identify how likely (ie "would" or "would be likely to") disclosure would harm or prejudice the relevant commercial interests.
  • You usually identify the public interest factors both in favour of and against upholding the relevant exemption.
  • You usually identify when it is appropriate to rely on the neither confirm nor deny exemption in section 43(3).

Unsatisfactory

  • You rarely identify whether the requested information is a trade secret.

  • You rarely identify the commercial interest in the requested information.

  • You rarely identify the link between the requested information and the harm or prejudice to commercial interests that is likely to occur.

  • You rarely identify how likely (ie "would" or "would be likely to") disclosure would harm or prejudice the relevant commercial interests.

  • You rarely identify the public interest factors both in favour of and against upholding the relevant exemption.

  • You rarely identify when it is appropriate to rely on the neither confirm nor deny exemption in section 43(3).

1. The way in which you identify whether the specific requested information is a trade secret is… (optional)
More information

FOIA does not define the term trade secret. You should consider this question with reference to The Trade Secrets (Enforcement, etc) Regulations 2018. The ICO considers that, to be a trade secret, the requested information: should not be generally known among, or readily accessible to, people within the circles that normally deal with that kind of information; has a commercial value and its disclosure is liable to cause real or significant harm to the owner or be advantageous to any rivals; and is subject to reasonable steps taken by the owner to keep it secret.

2. The way in which you identify the commercial interest in the specific requested information is… (optional)
More information

A commercial interest relates to a legal person's ability to participate competitively in a commercial activity. The underlying aim will usually be to make a profit. It can include the purchase of goods or services as part of the procurement process or the loss of opportunities. You or someone else may have a financial interest in the requested information but this might not be covered by the exemption because it does not translate to a commercial interest. For example, commercial interests do not include public spending on welfare benefits or the administration of such welfare benefits.

3. When relying on sections 43(2) and 43(3), the way in which you identify the link between the specific requested information, or the request itself, and the harm or prejudice to commercial interests is… (optional)
More information

You must explain how disclosing the specific requested information or where applicable, revealing whether it's held, is likely to cause harm or prejudice to commercial interests. This must be more than a mere assertion or belief that the harm is likely to occur. Where the information requested is a contract, you must consider each clause within the contract individually with a view to identifying whether it may be disclosed rather than applying section 43 in a blanket fashion.

4. When relying on sections 43(2) and 43(3), the way in which you identify the level of the likelihood (ie "would" or "would be likely to") of harm or prejudice is... (optional)
More information

You must decide the likelihood of harm or prejudice arising on the facts of each case. "Would prejudice" means there is more than 50% chance that the harm you have identified is likely to happen. "Would be likely to prejudice" means this is less than 50% but there is still a real and significant risk of harm. Ensure that the likelihood of the harm occurring is linked to disclosing the requested information or to revealing whether it is held.

5. The way in which you identify specific public interest arguments is… (optional)
More information

The public interest in disclosing information can cover a wide range of values and principles relating to the public good. For example, transparency and accountability, securing the best use of public resources and promoting commercial competition. You can rely on public interest factors to withhold information only if they are relevant to the information and relate specifically to the public interest in preventing prejudice to commercial interests.

6. The way in which you identify when to rely on the neither confirm nor deny exemption is... (optional)
More information

You do not have to confirm or deny that you hold information where to do so could harm someone’s commercial interests. There is no specific exclusion from the duty to confirm or deny for information which comprises a trade secret. However, if confirming whether or not you hold the information would reveal a trade secret and so harm someone's commercial interests, you may refuse to do so under section 43(3).