The notion that s. 43 can operate to prevent the disclosure of commercially sensitive pricing information is not a new one (see further e.g. Department of Health v IC (EA/2008/0018)). Of course, that does not mean that all pricing information will fall within the ambit of the s. 43 exemption. Certainly, where the information has effectively become historic at the time of the request, it may well be that any attempt to rely on s. 43 will be doomed to failure. However, just how far does a public authority need to go to prove to the tribunal that pricing information was current and commercially sensitive at the time of the request? This was one of the questions which arose in the recent case of Cranfield University v IC (EA/2011/0146). In Cranfield, a request was made to Cranfield University for disclosure of information, including certain pricing information, which was integral to a contract which the University had entered into with the MOD. The University presented detailed evidence to the tribunal to support its case that disclosure of the pricing information would prejudice its commercial interests, particularly by enabling competitors to steal a march in the context of any retendering exercise.
Far from demonstrating a deferential approach to the University’s evidence, the tribunal showed itself willing to interrogate all the assertions and assumptions made by the University during the course of its evidence. Not least, the tribunal accepted that the pricing information embodied commercial assumptions which had been made by the University but rejected the argument that this rendered the information particularly commercially unique or original (§26). It also relied on the fact that the MOD had previously expressed concerns about the pricing mechanism used by the University to challenge the University’s assumption that the mechanism would come into play in the context of any retendering exercise (§27). Perhaps most notably, the tribunal rejected the argument that the information would be of use to competitors on the basis that the University had itself represented to the MOD that it provided a high quality cost-effective service which could not be matched by other educational institutions (§§33-34). The latter conclusion will no doubt send shivers down the back of many public authorities which provide commercial services to third parties, particularly as it will presumably be a rare authority which will not want to proudly proclaim that the services which it offers are highly competitive and offer value for money. (Compare the Visser case, discussed in Robin’s post, where the tribunal found the authority’s evidence as to commercial prejudice to be rather more compelling). Note, the tribunal were rather more forgiving when it came to the University’s case that some of the information should be withheld on an application of the personal data exemption contained in s. 40.