Section 33: Commercial interests and the economy

When disclosure would prejudice commercial interests or the economic interests of the United Kingdom or Scotland.

Commercial interests and the economy#

Section 33 of FOISA exempts information that amounts to a trade secret, or where disclosure would substantially prejudice commercial interests, the UK economy, or the financial interests of a UK administration. This is one of the most commonly applied exemptions in Scottish FOI.

In plain terms#

The authority is saying: releasing this would seriously harm someone’s business interests, reveal a trade secret, or damage the economy. Authorities frequently cite section 33 when refusing to release contract details, tender prices, financial information about companies, or commercially sensitive data provided by third parties.

You ask a council for the pricing schedule in a waste collection contract. The council refuses under section 33(1)(b), arguing that releasing the contractor’s prices would substantially prejudice the contractor’s ability to compete for future work.

The legal detail#

Section 33 has four distinct limbs:

Section 33(1)(a) - the information constitutes a trade secret. This is class-based. If the information is genuinely a trade secret, the exemption is engaged without needing to show prejudice.

Section 33(1)(b) - disclosure would, or would be likely to, substantially prejudice the commercial interests of any person (including the authority itself). “Person” here covers companies, individuals, partnerships, and the public authority.

Section 33(2)(a) - disclosure would, or would be likely to, substantially prejudice the economic interests of the whole or part of the United Kingdom.

Section 33(2)(b) - disclosure would, or would be likely to, substantially prejudice the financial interests of a UK administration (the Government of the United Kingdom, the Scottish Administration, the Executive Committee of the Northern Ireland Assembly, or the National Assembly for Wales).

The word “substantially” sets a high bar. The authority can’t rely on vague or speculative claims. The prejudice must be real and significant, not merely possible.

Absolute or qualified?#

All four limbs are qualified. The public interest test applies in every case. Even where the authority can demonstrate a trade secret or substantial commercial prejudice, it must still consider whether the public interest in disclosure outweighs the interest in withholding. See What can they refuse? for more on how the public interest test works.

How it’s used in practice#

Section 33(1)(b) is by far the most commonly used limb. Authorities apply it to procurement documents, contract terms, consultancy fees, financial information from private companies, and data about the authority’s own commercial activities. Third parties - usually the companies involved - often argue that disclosure would harm their competitive position.

The Commissioner’s approach to section 33(1)(b) is well established. The authority must identify whose commercial interests would be harmed, explain the nature of the harm, and show that the prejudice would be substantial rather than trivial. A company’s discomfort at having its pricing made public is not the same as substantial prejudice to its commercial interests.

“Commercially confidential” is not a term in the law. Authorities and companies use the phrase loosely, but FOISA draws a clear line between commercial interests (section 33) and confidentiality (section 36). These are different exemptions with different tests. Information can be commercial without being confidential, and vice versa.

Timing matters. Once a contract has been awarded and the procurement process is complete, arguments for withholding tender prices and contract values weaken significantly. The Commissioner has regularly ordered disclosure of contract information after the procurement has concluded, finding that the risk of commercial harm has passed.

Trade secrets under section 33(1)(a) get a higher level of protection, but genuine trade secrets are rare. A company’s standard pricing or business model does not usually qualify. A trade secret must have independent commercial value precisely because it is secret - a manufacturing formula, a proprietary algorithm, or a unique process.

The economic and financial interest limbs - sections 33(2)(a) and 33(2)(b) - are used less often. They apply to information about government economic policy, financial markets, or the fiscal position of a UK administration. These are most likely to arise in requests to the Scottish Government about budget strategy or economic forecasting.

How to challenge it#

Check whether the authority has identified whose commercial interests would be harmed, and how. A refusal that simply says the information is “commercially sensitive” without explaining the specific prejudice is not good enough.

Ask whether the procurement or commercial process has concluded. If a contract has been awarded, argue that the competitive sensitivity has reduced. The Commissioner regularly finds that contract values and pricing schedules should be disclosed once the tender process is over.

If the authority claims the information is a trade secret, consider whether that’s realistic. Trade secrets are narrow in scope. Pricing, contract terms, and general business information are not trade secrets just because a company would prefer them to stay private.

Look at the public interest. Public bodies spend public money. There is a strong public interest in knowing how that money is spent, what contracts have been awarded, and whether value for money has been achieved.

See What to do if refused for the full process.

You can also use our interactive challenge tool for this exemption to work through these questions step by step and draft a review request.

Good to know: Section 33(1) - trade secrets and commercial interests - generally cannot apply to information more than 15 years old. Sections 33(2)(a) and 33(2)(b) - economic and financial interests - have no time limit. The authority can neither confirm nor deny whether it holds the information, but only where revealing whether the information exists or is held would be contrary to the public interest.