Copyright - Freedom of Information?

Our March 2005 Commercial Department Bulletin gave a summary of the Freedom of Information Act 2000 which came into force fully on 1st January 2005.

As a brief reminder, the Act gives everybody a general right to access information held by a Public Authority.

Suppose you have had dealings with a Public Authority and you do not want your documentation disclosed under the Act. Is there any basis on which you might be able to prevent disclosure? Specifically, could you argue that you have copyright in the documents and therefore they cannot be disclosed without there being a breach of copyright?

Copyright law

Section 50 (1) of the Copyright, Designs & Patents Act 1988 provides that where the doing of a particular act is specifically authorised by an Act of Parliament, then the doing of that act does not infringe copyright.

The Act specifically authorises Public Authorities to provide requested information (subject to conditions). Accordingly, it seems highly unlikely indeed that disclosure under the Act is a breach of copyright.

This point has not yet been tested in the courts but it is widely considered to be correct.

Can Public Authorities argue that disclosure would be in breach of copyright?

Section 11 (1) of the Act provides that the person applying to a Public Authority for information may express a preference for communication of the information. The applicant may request :

• a copy of the information in permanent form or in another form acceptable to the applicant ;
• the provision to the applicant of a reasonable opportunity to inspect a record containing the information ; or
• the provision to the applicant of a digest or summary of the information in permanent form or in another form acceptable to the applicant.

The Public Authority must so far as reasonably practicable give effect to the applicant's preference.

However, a Public Authority may argue that disclosure of information by providing a copy of the relevant document will be in breach of copyright and so they have no choice but to prepare a summary for the applicant. Preparing a summary would therefore take the Public Authority longer than it would take to photocopy the relevant documents. This may often result in the cost of disclosing the information going over the relevant cost threshold, which is either £450 or £600 depending on the Public Authority (which means that the Public Authority is released from the duty to disclose).

Again, however, it is widely considered that this argument has no legal justification.

Advice for individuals/companies dealing with Public Authorities

In practice, most Public Authorities are likely to disclose under the Act whatever information they have. Here are a few tips for protecting yourself or your business when dealing with Public Authorities :

• Assume that all documents are potentially disclosable.
• Take legal advice before entering into any contract with a Public Authority to ensure that any such contract will require it to consult you, or at least notify you, before any information is given out.
• Tell the Public Authority during the contractual negotiations what information is considered to be exempt under the Act and ensure that it is documented in the contract.

A schedule which lists information that you and the Public Authority agree is exempt is likely to be a workable solution.

This bulletin is not intended to be comprehensive or to provide specific legal advice. It should not be relied upon in the absence of specific advice given in relation to particular circumstances.

For further information on this or any related topic please contact Mark Grimes.