It happens with great regularity that government bodies ask companies to supply company or production data. For example, when assessing an application for an environmental permit or the preparation of a zoning plan. It is important to bear in mind that such data may also become public if disclosure is requested under the Government Information (Public Access) Act. It is therefore important to check carefully in advance whether the data to be submitted is protected against disclosure and, if not, to consult with the government body on whether the submission of that data is really necessary.
Wob requests and confidential data
With a Wob request, citizens, businesses, interest groups and other parties can request disclosure of data held by government agencies without giving reasons. This may also include company data of commercial parties.
The Open Government Act, also known as Wob, provides for the withholding of information about business and manufacturing data that has been confidentially disclosed to the government. This illustrates the importance of making it clear, when sharing such data, that it is done on a confidential basis.
Company and manufacturing data
But even if the data has been shared confidentially, the data may have to be disclosed upon request.
Disclosure is not required if it concerns business and manufacturing data, but the definition "business and manufacturing data" is applied quite strictly in case law. According to case law, business and manufacturing data only exist if and insofar as facts can be read or deduced from those data with regard to the technical management or the production process or with regard to the sale of the products or the circle of customers and suppliers. Data relating exclusively to financial management may also qualify as business information under certain circumstances. Disclosure of data that, for example, could only indirectly contain information of interest to competitors will generally not be able to be refused just like that.
If business and manufacturing information is actually involved, the public body must refuse disclosure. This is different if it is environmental information. If it involves emissions data, the business and manufacturing data must be disclosed. If it involves other environmental information, a balancing of interests must take place.
Disproportionate favoritism or disadvantage
It cannot be ruled out that a (legal) person may be disproportionately disadvantaged or advantaged by disclosure of data that does not qualify as business and manufacturing data. In that case, the Open Government Act provides a ground for refusal for the public body to refuse the requested data after all. In that case, however, the public body must weigh up its interests. The government body will then ask the company concerned to give its views on the matter prior to the disclosure. It is important to make use of this possibility.
If it is not business or manufacturing data, but it is environmental information, there should be no balancing of interests and the data should be made public.
Supply company data really necessary?
If requested by a public body to provide documents from which the production process or company data could be derived, it is advisable to check carefully whether the submission of those documents is really necessary to assess the requested decision. If submission of the documents is necessary, it is advisable to do so at least subject to confidentiality.
