Regulation 10(5)(e) - Commercial or industrial confidentiality

Challenge a refusal under EIR regulation 10(5)(e) - the authority says the information is commercially or industrially confidential

What this exception means#

The authority is saying that disclosing the information would, or would be likely to, cause substantial prejudice to the confidentiality of commercial or industrial information, where that confidentiality is provided for by law to protect a legitimate economic interest.

This is one of the most frequently overclaimed EIR exceptions, particularly for information about public contracts and commercial arrangements involving public money. The Commissioner has overturned many refusals under this exception where the claimed harm was speculative or where the public interest in transparency was strong.

Unlike FOISA, all EIR exceptions are subject to a public interest test and must be interpreted restrictively. There is a presumption in favour of disclosure.

Important: This exception cannot be used to withhold information about emissions - regulation 10(6) specifically prohibits this.

What the authority must show#

For this exception to apply, the authority must demonstrate that:

The information is genuinely commercially or industrially confidential
The confidentiality is provided for by law - such as the law of confidence
The confidentiality protects a legitimate economic interest
Disclosure would cause substantial prejudice to that interest - not just theoretical harm
The information is not about emissions (which cannot be withheld under this exception)
Even if the exception applies, the public interest in withholding outweighs the public interest in disclosure, applying the presumption in favour of disclosure

Things to check#

Is this genuinely confidential commercial information? Not all business-related information is commercially confidential. Contract values, service levels, performance data, and other terms of public contracts are often disclosable because they relate to how public money is spent. The Commissioner treats public money transparency seriously.
Whose commercial interests? The authority should identify whose interests would be harmed - the authority’s own, a contractor’s, or a third party’s. Each requires separate justification. The authority cannot simply defer to a third party’s assertion of confidentiality without its own assessment.
Is the confidentiality protected by law? The authority must identify the legal basis for the confidentiality - typically the common law of confidence. For the law of confidence to apply, the information must have the necessary quality of confidence, must have been imparted in circumstances creating an obligation of confidence, and disclosure must cause detriment.
Would disclosure cause real commercial harm? The authority must show that disclosure would actually damage someone’s legitimate economic interests - not just that a company prefers its information to remain private. Would competitors genuinely gain an unfair advantage? Would it actually affect future tendering?
Does the information relate to emissions? Under regulation 10(6), information about emissions cannot be withheld under this exception. This includes data about discharges, pollution, waste releases, and environmental monitoring data.
Is this about public money? Where public contracts are involved, the public interest in transparency is particularly strong. The Commissioner has frequently found that the public interest in understanding how public money is spent outweighs commercial confidentiality claims.
The public interest test is essential. Even if the exception applies, the authority must demonstrate that the public interest in withholding outweighs the public interest in disclosure, applying the EIRs’ presumption in favour of disclosure. For public contracts and public money, the bar is high.

Use the interactive tool#

Answer the questions below to check whether regulation 10(5)(e) has been properly applied to your request.

What the evidence shows

Arguments that have supported disclosure

In cases where the public interest test favoured disclosure, these themes appeared most often.

Scrutiny of public spending The public has a right to understand how public money is spent and whether it provides value for money
Accountability for environmental decisions There is a strong interest in scrutinising decisions that affect the environment, including planning, development, and waste management
Transparency for public participation The public needs access to information to participate effectively in environmental decision-making
Understanding project failures Where publicly-funded environmental projects fail, the public has a right to understand why and hold decision-makers accountable
Presumption of disclosure The EIRs carry a strong presumption in favour of making environmental information available

What authorities typically argue

These are the arguments authorities most commonly make when withholding information under this exception. Knowing them helps you prepare a stronger case.

Protecting commercial confidentiality Authorities argue that disclosing commercially sensitive information would cause substantial harm to the economic interests of the company or authority involved
Maintaining competitive markets Disclosure could give competitors an unfair advantage, reducing competition and value for money in future procurement
Deterring business engagement Companies may be unwilling to work with or provide information to public bodies if they fear commercial details will be disclosed
Protecting information provided in confidence Information was shared voluntarily with an expectation of confidentiality that should be respected
Ensuring best value Revealing costs, risk analyses, or pricing could undermine the authority's ability to achieve best value for public money

Factors that tipped the balance

In decisions where the Commissioner ordered disclosure, these factors were decisive.

Authority failed to demonstrate specific harm The authority's claims about commercial prejudice were generic or unsupported by evidence specific to the actual information
Information was already public Information already in the public domain cannot be considered confidential, removing it from the scope of the exception
Project failure changes the balance Where a project did not come to fruition, the public interest in understanding the failure outweighed commercial confidentiality
Information was innocuous or general The information was standard contract detail or general in nature, incapable of causing the commercial harm the authority claimed
Presumption in favour of disclosure The EIRs require exceptions to be interpreted restrictively and in favour of disclosure

Based on published decisions of the Scottish Information Commissioner. You can browse the decisions on the Commissioner's website.