Section 33 - Commercial interests and the economy

Challenge a refusal under FOISA section 33 - the authority says disclosure would harm commercial interests

What this exemption means#

The authority is saying that disclosing the information would harm commercial or economic interests. Section 33 contains four distinct exemptions covering trade secrets, commercial interests, the UK economy, and the financial interests of UK administrations. Section 33(1) is the most commonly used, particularly for information about contracts and procurement.

This is a qualified exemption, so the authority must pass the public interest test.

What the authority must show#

Section 33 has four parts:

Section 33(1) - trade secrets and commercial interests#

Section 33(1)(a) - the information constitutes a trade secret. This is class-based - if the information genuinely is a trade secret, no harm test is needed. But “trade secret” has a specific legal meaning: commercially valuable information that is used in trade, kept secret, and would cause real harm if disclosed to a competitor.
Section 33(1)(b) - disclosure would substantially prejudice the commercial interests of any person (which can include the authority itself, a company, or an individual). This is prejudice-based - the authority must show real harm.

For section 33(1), the information must be less than 15 years old (15-year time limit applies).

Section 33(2) - the economy and financial interests#

Section 33(2)(a) - disclosure would substantially prejudice the economic interests of the whole or part of the United Kingdom. This covers the national and regional economy - for example, information whose release could affect markets, interest rates, or economic stability. “Part of the UK” includes regions, not just the separate countries.
Section 33(2)(b) - disclosure would substantially prejudice the financial interests of a UK administration (the UK Government, the Scottish Administration, the Executive Committee of the Northern Ireland Assembly, or the National Assembly for Wales). This covers the management of an administration’s financial resources - such as funding, taxation revenue, or the cost of borrowing.

Section 33(2) has no time limit - unlike section 33(1), it can be applied to information regardless of how old it is.

For all four parts#

The authority must carry out and explain a public interest test - all parts of section 33 are qualified exemptions.

Things to check#

Whose commercial interests? If the authority cites 33(1)(b), it must identify whose commercial interests would be harmed - its own, a contractor’s, or a third party’s. It should explain the nature of those interests.
Is it really a trade secret? Many things described as “commercially confidential” are not actually trade secrets. Trade secrets are specific: manufacturing processes, pricing methodologies, proprietary technical data. Routine contract information, payment schedules, and performance data are usually not trade secrets - particularly after the contract has been awarded.
Is the information about public spending? There is a strong public interest in transparency about how public money is spent. The Commissioner and the Scottish Ministers’ Code of Practice both recognise this. Contracts with public authorities should generally be disclosed, with only genuinely sensitive commercial detail redacted - not withheld entirely.
Has sensitivity diminished over time? Commercial information loses sensitivity as market conditions change. Tender prices from years ago are unlikely to guide future bids. The passage of time is a relevant factor.
Is it already publicly available? If the information, or similar information, is already in the public domain, it is harder to argue that disclosure would cause substantial prejudice.

Use the interactive tool#

Answer the questions below to check whether section 33 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.

Following the public pound The public has a right to know how public money is spent and whether it provides value for money
Accountability for financial decisions Taxpayers can scrutinise the terms of contracts and financial agreements entered into by public bodies
Transparency in public services Where public services are delivered by private companies, the public still has a right to understand how those services are performing
Informed decision-making by the public People need information - such as care home inspection data - to make informed choices about services that affect them
Scrutiny of major financial commitments Where public bodies enter into long-term financial agreements, there is a strong interest in understanding the full terms and costs

What authorities typically argue

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

Unfair commercial advantage Authorities argue that disclosing commercially sensitive information would give competitors an unfair advantage
Protecting the authority's bargaining position Disclosure could weaken the authority's position in current or future negotiations and prevent it achieving best value
Deterring businesses from working with government Companies might be unwilling to tender or share information if they fear commercial details will be made public
Protecting third-party commercial interests Disclosure could prejudice the commercial interests of businesses that have supplied information in confidence
Maintaining competitive markets Revealing pricing, costs, or strategies could distort competition and ultimately reduce value for money

Factors that tipped the balance

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

Authority failed to evidence specific harm The authority's arguments about commercial prejudice were generic or not supported by evidence specific to the actual information
Information was factual or already public The information was either already available publicly, was purely factual, or was generic enough that it would not cause commercial harm
Public interest in scrutiny outweighed commercial harm The Commissioner found that the public interest in understanding how public money was spent or how services were performing outweighed the claimed commercial prejudice
Risk of harm was speculative The authority's concerns about commercial damage were hypothetical rather than based on evidence of likely prejudice
Completion of process reduced sensitivity Where a procurement exercise had concluded, the claimed commercial sensitivity was significantly reduced

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