Almost by a side wind, the new Freedom of Information legislation which came into force in January 2005 has created perceived new risks for all those pitching for new business from public bodies. And if law firms are concerned, then marketing services agencies certainly ought to be.
Who: Leading UK law firms
When: April 2005
Leading city law firms were reported to be urgently revising their modus operandi for pitching to public bodies for their legal work. This development followed the coming into force in January 2005 of the Freedom of Information Act ("FOI").
The FOI requires public bodies throughout the UK to make information available to all those who request it subject to a few limited exceptions.
This obligation to disclose information to all comers could extend to details of pitches made by potential suppliers to public bodies and the fear is that competing law firms could extract all sorts of sensitive information about their competitors' charging rates and other financial data simply by lodging a request with the relevant public body.
The pre-emptive measures being taken by some law practices include a much more rigorous approach to designating proposals made to public bodies as "highly confidential".
Why this matters:
There is no reason why the above considerations should not apply equally in cases where marketing services suppliers are pitching to public bodies for business. It must be borne in mind, however, that there are exemptions to the obligation on public bodies to disclose information requested. Perhaps the most relevant example in these cases will be the exemption given to information provided to a public authority "in confidence."
This confidentiality exemption has two parts. Firstly the public authority must have obtained information from another person and secondly the disclosure must be capable of giving rise to an actionable breach of confidence.
On the face of it, both of these components would appear to apply in a pitch situation, even without the pitching company stating on its slides, for example, that the information being submitted is "highly confidential."
On the other hand, the Codes issued in this area by the Office of the Information Commissioner clearly indicate that agencies contemplating a pitch to a public body would be best advised to negotiate explicit confidentiality agreements with the prospective client. Under the code such agreements should identify what information is confidential, give the reasons for the confidentiality and specify in what circumstances or after what period of time the information may cease to be confidential.
This "confidentiality" exemption is what is called an "absolute exemption", which is therefore theoretically not exposed to being eroded by public interest considerations (in contrast to the considerations of public interest that recently defeated the Beckhams' attempts to gag their former nanny's revelations on grounds of breach of confidence).
There are also other exemptions which might apply in a pitching scenario, for instance, the "commercial interests" exemption. This exemption, however, is not an absolute, but a qualified exemption, which means it is susceptible to being overturned on the basis of an overriding public interest argument.