In 2019, The National Archives (TNA) tendered for the digitisation and licensing of the 1921 census records. The contract was subsequently awarded to Findmypast (FMP), who has announced that images and transcriptions of the census records will be available to view on its website from January 2022.
It would appear that, initially, this is an exclusive arrangement with FMP.
I should be grateful if you would advise me of the date on which TNA will be able to offer licenses to other online family history sites, for example Ancestry, The Genealogist, etc.
I can confirm that The National Archives holds information relevant to your request.
Unfortunately, we are unable to provide you with this information.
We are unable to provide you with the information you have requested because it is covered by the exemption at section 43(2) of the FOI Act, which exempts information if disclosure would be likely to prejudice the commercial interests of any person.
Additionally, the information is also covered by the exemption at section 41 of the Act, which exempts information if (a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under the Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.
For further information about why these exemptions have been applied, please see the explanatory Annex at the end of this letter.
Section 43(2) – Commercial Interests
This section exempts information whose disclosure would be likely to prejudice the commercial interests of any person. In this case, the exemption applies because release would prejudice the commercial interests of both Find My Past and The National Archives.
Section 43(2) is a qualified exemption and we are required to conduct a public interest test when applying any qualified exemption. This means that after it has been decided that the exemption is engaged, the public interest in releasing the information must be considered. If the public interest in disclosing the information outweighs the public interest in withholding it then the exemption does not apply and the information must be released. In the FOIA there is a presumption that information should be released unless there are compelling reasons to withhold it.
The public interest test has now been concluded and the balance of the public interest has been found to fall in favour of withholding information covered by the section 43(2) exemption.
Considerations in favour of the release of the information included The National Archives’ commitment to openness and transparency in its commercial activities, to allow public scrutiny and to demonstrate that public funds are being used in an efficient and effective way. Furthermore private sector companies engaging in commercial activities with the public sector must expect some information about those activities to be disclosed.
Considerations against disclosure included the recognition that disclosure is likely to provide information to direct competitors within the market that would create an imbalance and a commercial advantage to those competitors. Furthermore disclosure of this information is also likely to affect The National Archives’ ability to negotiate contracts in the future and consequently generate revenue from non-public funds. It is also considered that disclosure would be likely to deter potential bidders for future contracts from competing and sharing commercially sensitive information with us.
As such, release of this information is seen to prejudice the commercial interests of both Find My Past and The National Archives. This would outweigh any benefits of release. It was therefore decided that the balance of the public interest lies clearly in favour of withholding the material on this occasion.
Further guidance can be found at: https://ico.org.uk/media/for-organisations/documents/1178/commercial-interests-section-43-foia-guidance.pdf
Section 41 – Information provided in confidence
Section 41 (1) of the Act exempts information if (a) it was obtained by the public authority from any other person (including another public authority), and (b) the disclosure of the information to the public (otherwise than under the Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.
In this case, the exemption applies because the information was provided by Find My Past under an expectation of confidence which they would expect The National Archives to honour.
Further guidance can be found at: https://ico.org.uk/media/1432163/information-provided-in-confidence-section-41.pdf