S43: Commercial interests

Summary

This exemption is quite broad, and can be split into two parts. Information may be exempt from disclosure if:

  • it is classified as a trade secret;
  • its release would be likely to prejudice the commercial interests of any person (individual, a third party company, the University or any other legal entity)
  • Qualified exemption, therefore consideration of the public interest test is required;

Trade Secrets

Trade Secret is not defined in the Act but is considered to have a fairly wide meaning. Obvious examples include secret formulaes/recipes but the definition could extend to include names of customers or pricing structures if these form the basis of a company’s “competitive edge”, and are not generally known.

  • Duty to confirm or deny, therefore the applicant would still need to be informed that the information existed.

Commercial Interests

  • Commercial interest relates to the ability to successfully participate in a commercial activity and is distinct from financial interest.
  • Duty to confirm or deny the existence of the information does not arise if this would prejudice commercial interests.

Questions to consider when applying the prejudice test:

  • Could the release of the information impact on the University’s/third party company’s activity of buying or selling goods and services?
  • Is the commercial activity conducted in a competitive environment? The more competitive the environment, the more likely it is that release of the information will affect commercial interests.
  • Would there be damage to reputation or business confidence?
    (NOTE: this is not an exemption for embarrassment, only where there is a REAL risk of such harm being caused could the exemption be claimed).
  • Could the release of information disadvantage the University? For example, release of a budget set aside for a project could encourage suppliers to raise prices or affect the bargaining position of the University.
  • Does the information reveal a unique selling point that could benefit competitors?
  • Will release of the information prevent the third party entering into future agreements/partnerships with the University?

Note that it is unlikely that information can be held back as a result of administrative inefficiency or to cover official embarrassment.

Examples of information that may fall under this exemption:

  • Procurement (e.g. future plans, information provided during tender process)
  • University's academic research
  • University’s own commercial activities (e.g. wholly owned subsidiary companies, programme development, research contracts)
  • Private Finance Initiatives/Public Private Partnerships.

Sources of further information

More detailed guidance notes about this exemption can be found by viewing the following links: