Request
It is not a complaint, just a general enquiry. I would like to know how much The National Archives will receive in royalties from Findmypast when people pay them for transcribed records or digital images of the 1921 Census. Their website simple says that you will ‘receive royalties’. Thank you in advance
Outcome
Information withheld.
Response
We are unable to provide you with the information you have requested because it is covered by the exemption at section 41 of the FOI 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. The information is also covered by the exemption at section 43 (2) of the Act. This exempts information if disclosure would be likely to prejudice the commercial interests of any person.
The National Archives has yet to receive any income from Findmypast in relation to the 1921 Census. However, we will begin to receive royalties from them now that the Census has launched. The royalty income generated by the Census release will go towards supporting the public service which The National Archives offers. The exact detail of those royalties is commercially sensitive and subject to a confidentiality clause. Consequently, we are unable to provide you with the information you have requested because it is covered by the aforementioned exemptions.
EXPLANATORY ANNEX
Exemptions applied:
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 Findmypast under a confidentiality clause which they would expect The National Archives to honour.
Further guidance on the application of this exemption can be found here:
https://cy.ico.org.uk/media/for-organisations/documents/1432163/information-provided-in-confidence-section-41.pdf
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 Findmypast 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 Findmypast 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 on the application of this exemption cab be found here:
https://ico.org.uk/for-organisations/foi-guidance/section-43-commercial-interests/