Despite the UK Government's continued programme of austerity, the public sector remains a key customer for many businesses. In the recruitment field, cuts have often been followed by new appointments, or by the engagement of temporary or part-time workers, sometimes employed by the public body, or sometimes engaged through a variety of agencies. In each case, there is a possibility that the Freedom of Information Act (or FOIA) can apply.
FOIA gives anyone (individuals, companies, in the UK or anywhere in the world) the right to ask any public body for any information held by it, and to be provided with that information (unless one of a carefully worded set of exemptions applies).
For businesses contracting with public bodies, it is therefore worth reflecting on the fact that their contracts, terms of business, price model and other information might be disclosed by the public body in response to a request for disclosure. As such, businesses dealing with public bodies should always operate on the assumption that their contract terms will be made public, but also that the public authority's notes about performance, and their reviews and reports, will all be made available to anyone who asks.
On the other hand, if a business is thinking about pitching for new work, or responding to a formal tender, considerable insight into current arrangements can be sought by making a FOIA request. The reasons for making a request are entirely irrelevant to the public body – it is required to provide a full answer, unless an exemption applies, and it chooses to apply the exemption to the request in front of it.
The process of requesting information is very simple – it needs to be in writing, and there is no fee associated with the making of a request. Requests can come in the form of a formal letter or even a tweet. The public body is required to respond as soon as practicable and in any event within 20 working days – only if one of a limited number of exemptions applies can the request be refused if the body holds the information that is sought. Those limited exemptions fall into two categories: absolute exemptions, and a more difficult group of conditional exemptions, where the public authority has to carry out a balancing act, weighing up whether it is more in the public interest to refuse disclosure than to give disclosure.
So, faced with a public sector client, businesses should consider very carefully what information to share, or what information to seek from them – FOIA can be used as a very effective means of gathering intelligence.