Decision
Mr X and Galway County Council
From Office of the Information Commissioner (OIC)
Case number: 160340
Published on
From Office of the Information Commissioner (OIC)
Case number: 160340
Published on
Whether the Council has justified its refusal to fully grant access to various records concerning the Loughrea Municipal District - Non National Pavement Overlays Contract 2015- Contract No 1
Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
15 March 2017
On 16 September 2015, the applicant made a request to the Council for all records relating to the contract.
By way of general background, I understand that the applicant's company had submitted the lowest tender for the contract. For various reasons that I see no need to detail here, while a "letter of intent" was issued to the company, it was not awarded the contract. The contract was then offered to another tenderer (Tenderer B) and ultimately awarded to a third tenderer (Tenderer C).
The Council's decision, dated 14 October 2015, refused to grant access to any of the 71 records it considered relevant to the request. It relied on section 31(1)(a) regarding records that the Council said attracted legal professional privilege and on "section 36" regarding records the Council described as "commercially sensitive". Although not mentioned in its decision, the Council's schedule of the records indicated that it had refused to release other records it had previously sent to, or received from, the applicant. On 11 November 2015, the applicant sought an internal review of the Council's application of sections 31(1)(a) and 36, as well as its refusal to grant access to documents that he had provided to the Council. In addition, he argued that further relevant records should exist. The Council's internal review decision of 23 February 2016 released the records that had been provided to it by the applicant. It said that it "was not aware" of any records additional to those already considered. It also affirmed its refusal of those records to which section 31(1)(a) and "section 36" had been applied.
On 19 August 2016, the applicant sought a review by this Office of the Council's refusal of his request. During the review, the Council also released to the applicant a copy of his company's tender.
I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the Council, Tenderers B and C, and the applicant. I should make it clear that I did not consider it appropriate to consult with any parties other than Tenderers B and C, or to seek the consent of such parties to the release of records affecting their interests. Furthermore, while the applicant's initial application to this Office was detailed, he was invited to, but did not, make a submission. Neither did he reply to further correspondence from this Office regarding certain material issues. I have also had regard to the records at issue, copies of which were provided to this Office for the purposes of this review, as well as the provisions of the FOI Act.
This review is confined to whether or not the Council has justified its refusal of those records it withheld under sections 31(1)(a) and "section 36", and whether it has justified the position set out in its internal review decision that it was "not aware" of any additional records of relevance to the request.
The records withheld under section 31(1)(a) are:
records 22; 23; 24; 25; 26; 32; 33; 35; 36; 37; 42; 43; and 44. Records 35; 36; and 37 were presented to this Office as one composite record and I will refer to this as "record 35/36/37".
An FOI request can only cover records that existed up to the date of receipt of the request. According to the records at issue, the FOI request in this case was received on 16 September. However, record 44 was created on 16 and 17 September 2015, on foot of receipt of the applicant's FOI request. Accordingly, the request does not cover record 44 and I have no remit to include it in my review. It is open to the applicant to make a new request for record 44, the fresh decision on which is subject to the usual rights of internal and external review.
The records withheld under "section 36" are:
records 1; 2; 9; 28; 29; 30; 45; 46; 47; 48; 49; 50; 51; 52; 53; 54; 55; 56; 57; 58; 59; 60; 61; 62; 63; 64; 65; 66; 67; 68; 69; 70; and 71.
I have grouped these records into the following general categories:
Category One: The Request for Tenders (RFT) - Record 1. Record 1 is, according to the Council's schedule, made up of "Contract Documents", "Appendix 5 - Instructions to Tenderers" and "Volume A-D".
Category Two: Tenders Received - Record 2. Record 2 is comprised of the tenders submitted by parties other than the applicant's company, all of which are named on the Council's schedule of records. The Council has not suggested that the schedule it provided to this Office, to which I refer throughout this decision, is any more detailed than that which it provided to the applicant.
Category Three: Records concerning the Council's evaluation of the tenders, and its award of the contract - Records 9; 28; 29; 30; 45; 46; 47; 48; and 49.
Category Four: Records concerning the roll-out of the project to which the contract relates - Records 50; 51; 52; 53; 54; 55; 56; 57; 58; 59; 60; 61; 62; 63; 64; 65; 66; 67; 68; 69; 70; and 71. The Council supplied one record marked as both 69 and 70, and a further separate record marked as 70. I will refer to these records respectively as record 69/70 and record 70.
The Commissioner has no remit to examine, or make findings on, how the Council conducted the tender process to which the request relates.
At the outset, it is relevant to note a number of preliminary matters.
Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons (whether stated or suspected) for the request. Accordingly, the question of whether the applicant is a competitor of any of the companies that submitted tenderers is irrelevant and something I cannot have regard to in making my decision.
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. However, in a case such as this, involving the interests of other parties, it is important that those parties are given an opportunity to make submissions and that any such submissions received are taken into account in the final decision on the case.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.
Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
The Council's Position in this Review
This Office invited the Council to make a submission in relation to the exemptions it had relied on, as well as in relation to section 15(1)(a). The requirements of section 22(12)(b) were clearly highlighted, and it was asked to reply within two weeks. The Council made no submission within this time frame. When staff of this Office told the Council that Tenderer B had consented to the release of certain records affecting its interests, the Council sought and was given further time to make a submission. No submission, or any further contact, was received from the Council. This, coupled with the very limited reasons for refusal in its decisions (e.g. no indication of which part of section 36 was relied on or whether the public interest balancing test was applied), leads me to conclude that the Council has not complied with the requirements of section 22(12)(b).
However, a decision to direct release of the records on this basis alone would affect the interests of third parties. This would not be in keeping with the requirements of the FOI Act, which gives third parties a right to make submissions, and whose submissions must be taken into account before a decision is made that might affect their interests. Accordingly, certain third parties were consulted in this case and I have taken their comments into account in making my decision.
Information Already Given to Applicant
As already noted, the Council's schedule of records identified the various tenderers.
I also consider it appropriate to refer to certain information in records that comprise "[d]ocumentation previously sent to the [FOI] applicant". I have no reason to believe, when sending these records to the applicant, that the Council placed, or tried to place, limitations on the use to which the applicant can put the contents of such records, such as disclosing them to a wider audience. In such circumstances, I do not think that I am in breach of section 25(3) of the FOI Act in outlining, at least in general terms, the contents of such records, where necessary.
In particular, I note that one such record (record 7) states that the tender was "advertised on e-Tenders"; discloses the number of tenders received and identifies all the tenderers as well as the amounts they tendered.
Section 15(1)(a)
Section 15(1)(a) provides that an FOI body may refuse to grant a request where "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". By saying in its internal review decision that it was "not aware" of additional records of relevance to the request, the Council effectively refused such records under section 15(1)(a) of the FOI Act.
A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken reasonable steps to locate all records of relevance to a request, or that a record does not exist. These are generally referred to as "search cases". It is not normally this Office's function to search for records. The Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA).
The applicant's internal review application, and his application to this Office, describe further categories of record he considers to be relevant to his request i.e. records concerning planning; pre-procurement and funding; procurement (including records concerning the preparation and approval of tender documents and related material, particularly what he says was the revision of the letter of intent); internal and external reporting; and "Council business" in relation to the tender.
Certain of the withheld records seem to fall into some of the categories of record above. However, the applicant's request has a broad scope, the extent of which was apparently not clarified with him by the Council. It is not unreasonable to expect that there should exist additional records of relevance to the request in such circumstances.
In inviting a submission, this Office asked the Council what files it holds concerning the contract and how these files were searched to identify records relevant to the request. It was also asked to comment specifically on the applicant's contentions regarding the letter of intent. No such details were received.
Accordingly, I find that the Council has not justified its effective reliance on section 15(1)(a) of the FOI Act in relation to the various records that the applicant described in his internal and OIC review applications, and indeed in relation to further records that might exist (such as, for instance, records concerning additional payments made on foot of the contract). I annul the Council's effective reliance on section 15(1)(a) in respect of all such records. I direct it to make a decision, in accordance with the provisions of the FOI Act, on what is essentially a fresh request for the records concerned. The Council's decision is subject to the usual rights of internal and OIC review.
I would add that if the Council has any particular concerns about the breadth of the request, it is open to it to consider refusing it on the basis of section 15(1)(c) of the FOI Act, which may be applied to voluminous requests. However, any application of section 15(1)(c) also requires proper compliance with section 15(4), which provides that an FOI body considering relying on section 15(1)(c) cannot do so "unless [it] has assisted, or offered to assist, the requester concerned in an endeavour so as to amend the request for re-submission such that it no longer falls within [this] paragraph."
Section 31(1)(a) - Legal Professional Privilege
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Previous decisions from this Office have accepted that legal professional privilege enables the client to maintain the confidentiality of two types of communication:
confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
Privilege does not attach to non-confidential communications or to legal assistance. Section 31(1)(a) does not require the consideration of the public interest.
Advice Privilege
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
Litigation Privilege
In considering litigation privilege, the judgment of 21 March 2014 of Finlay Geoghegan J., in the case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135 (the ESB case) is relevant. Ms Justice Finlay Geoghegan made it clear that:
the onus is on the party asserting litigation privilege to "establish ... as a matter of probability that litigation ... was apprehended or threatened from [a particular date]";
the dominant purpose threshold is not met in a case where there are two equal purposes for a document's creation, even if one of those purposes is preparation for litigation; and
unlike legal advice privilege, litigation privilege does not "automatically continue beyond the final determination of either that litigation or ... closely related litigation."
In-House Legal Advisers
The Commissioner accepts that, provided the ingredients of advice privilege or litigation privilege are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not prevent the client from being able to assert the privilege over the communications at issue.
Finally, the European Court of Justice in the case of Akzo Nobel v the European Commission held that legal advice privilege does not apply to communications with in-house lawyers on European competition law issues. The Commissioner considers the judgment in Akzo Nobel to have limited effect in that, in principle, it applies only to the exercise by the European Commission of specific powers under European competition law and does not mean that records of advice received, or sought, from an in-house legal adviser cannot attract the relevant privilege.
Analysis
The applicant contends that "the principle of legal professional privilege does not generally apply to in-house lawyers and in-house communications with in-house lawyers". He maintains that "legal professional privilege only applies to records relating to litigation or in contemplation of litigation". It is clear from the above that I do not accept these arguments.
He correctly argues that legal professional privilege "does not exist in situations where communications exist in furtherance of conduct that is criminal, fraudulent, or contrary to the interests of justice". He says that "events surrounding the award of the relevant contract involve procurements and competition issues related to the public interest and may involve criminal or fraudulent conduct or conduct contrary to the interests of justice." However, this Office cannot consider or make findings on any of the applicant's contentions, and it would not be appropriate to direct release of the records on the basis of such assertions.
The Council has not stated which limb of privilege it is seeking to rely on in this case, or made any submissions as to why it might apply.
Litigation Privilege
While the applicant says that a number of the withheld records "predate any action ... that could be considered as contemplating litigation", he did not say if legal action had in fact been taken. The Council has not addressed the matter. I find that the Council has not justified its decision to refuse access to the records at issue under section 31(1)(a) of the FOI Act on the basis that they attract litigation privilege.
Advice Privilege
Given that section 31(1)(a) is a mandatory exemption, I will consider whether any of the records at issue in this case, regardless of whether they were created for the purpose of legal proceedings, might attract legal advice privilege.
The records at issue are comprised of email strings. The strings include internal Council emails and, in some cases, emails to and from the applicant. Certain of the internal Council emails are communications with a staff member that, further to the description of his role in record 23 and the results of internet searches, I accept to be the Council's professional legal adviser. I accept that the various email contacts with the legal adviser that disclose the details of advice sought or received from him attract advice privilege. I also accept that emails between Council staff who do not appear to work in the legal unit but which detail legal advice sought or received are part of a continuum of communications arising from an initial request for legal advice, and also attract advice privilege. I accept that such documents are exempt under section 31(1)(a) accordingly.
Records 24, 25 and 26 contain attachments that I accept attract advice privilege, because they disclose legal advice given by the Council's legal adviser. However, I do not accept that those elements of records 22, 23, 32, 33, 35/36/37, 42, and 43, which comprise pre-existing emails and letters received from the applicant's company, are privileged, particularly in the absence of argument on this point from the Council. I direct that these emails and letters be released.
"Section 36"
The Council's decision making records do not say which of the three provisions of "section 36" it considers to apply to the records. It has made no submissions to clarify the matter. Neither the Council, nor Tenderers B or C, have made a claim(s) for exemption under any specific provision of section 36.
In the circumstances, I consider section 36(1)(b) to be the most appropriate provision to consider. In my view, section 36(1)(b) has potential application to any information at issue in this case that might also be exempt under sections 36(1)(a) or (c).
Section 36(1)(b) - Commercial Sensitivity
Section 36(1)(b) is a mandatory exemption that must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 361(b) is that disclosure "could reasonably be expected to result in material loss or gain". The Commissioner takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.
The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 (the Westwood case) Cross J. held in the context of an FOI body's refusal to release information on a company it had established that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive.
Arguments
The Council has made no argument regarding the application of section 36(1)(b), whether about information affecting its own interests or those of the various tenderers.
Tenderer B, while consenting to the release of two particular records, referred to the confidentiality of pricing in tender documentation. Tenderer C said that records relating to it were considered to be commercially sensitive, and should not be released in circumstances where the requester was likely to be a competitor. Tenderers B and C did not explain how disclosure of the particular records could prejudice their own financial positions, however.
Analysis
As already noted, there is a low standard of proof to be met when considering if disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession.
This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, that it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny.
Tenderers B and C, and indeed the other third party tenderers, are private sector companies that exist in their own right. It is also relevant that, while the Council has not justified exemption of the records in the basis of its own financial or other interests, tenderers B and C have provided some arguments as to why the information about them should not be released. Furthermore, section 36(1)(b) is a mandatory exemption.
Category One
As noted above, record 1 essentially comprises the RFT and sets out the Council's requirements for the award of the contract. It therefore contains information pertinent only to the Council. Record 1 is entirely different from the tenders that were submitted in response, to the records that discuss the tenders or the award of the contract, and to the records concerning the overall management of the project. It is not apparent how it might contain information that, if released under FOI, could impact on any of the companies referred to in such records.
Furthermore, according to record 1 itself, and indeed record 7, the information in record 1 was "advertised on e-Tenders". The Council has not tried to explain how, in such circumstances, the information in record 1 is not already in the public domain.
Accordingly, I have no basis to consider record 1 to be exempt under section 36(1)(b) of the FOI Act. It is open to me to find the record to be exempt under the discretionary section 15(1)(d), which provides that an FOI body may withhold a document containing information that is already in the public domain. However, I see no reason to make such a finding where an FOI body has failed to make any arguments whatsoever in support of its refusal of a record. I direct that this record be released in full.
Categories Two, Three and Four
All of the relevant records, except for a small element of record 49, refer to parties other than the applicant's company.
I accept that the total tender prices submitted by all the various tenderers; any breakdowns of how those prices were arrived at; details of how the tenderers proposed to meet the Council's requirements for the contract; and any views expressed by the Council on the contents of such tenders and the subsequent awarding of the contract accordingly, qualify as commercially sensitive information for the purposes of section 36(1)(b) of the FOI Act. I accept that the prices and other details are reasonably current, given that they concern works that took place in 2015.
Furthermore, release of the relevant records would give the tenderers' competitors an insight into how the tenderers prepared their bids in this case. It is reasonable to accept that those competitors would find such information useful when taking part in future public sector tender competitions generally. They would also gain an insight into the (probably preferential) prices submitted to the Council by the tenderers, as well as the tenderers' pricing generally and other internal information. It is reasonable to accept that such information would be of use to the competitors when trying to compete with the tenderers for non-public sector contracts generally.
I also accept that records concerning Tenderer C's part in rolling out the contract also qualify as information to which section 36(1)(b) applies. Such records would provide Tenderer C's competitors with an insight into how Tenderer C met the Council's requirements and managed the project concerned, which it is reasonable to accept would be of use to them when preparing for future large scale projects, whether public- or private-sector.
I also consider those details in the records that concern sub-contractors engaged by Tenderer C to qualify for exemption under section 36(1)(b), in that they are comments that could be taken as reflecting on the performance of the sub-contractors concerned.
Some of the records contain, or reflect, information in records that the Council has already "previously sent to the [FOI] applicant". It is debatable if further release of those details could impact on the relevant tenderers, such that section 36(1)(b) could apply to them. Having examined the records, however, I consider such information to comprise a very small part of the entirety of what has been withheld. Accordingly, given my approach to section 18, I do not intend to direct the release of such details.
In summary, I accept that the release of records 2; 9; 28; 29; 30; 45; 46; 47; 48; 49; 50; 51; 52; 53; 54; 55; 56; 57; 58; 59; 60; 61;62; 63; 64; 65; 66; 67; 68; 69; 70; and 71 "could prejudice the competitive position" of the various tenderers in the conduct of their business. I find that section 36(1)(b) applies to these records.
Section 36(2)
Section 36(2) provides that details to which section 36(1)(b) applies may be released if (a) the party to which the information relates consent to the release of the details concerned; (b) information of the same kind as that at issue in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public; (c) the record relates only to the requester; (d) the information at issue was given to the body by the person to whom it relates and the person was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public; or (e) disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or the environment.
Tenderer B has consented to the release of the letter of intent it received from the Council, and its reply (records 28 and 29 refer). Both are releasable further to section 36(2)(a). However, I note that the records contain email addresses of certain Tenderer B employees. They disclose information about those individuals' employment or employment history, which comes within the definition of personal information in the FOI Act. I find the email addresses to be personal information that is exempt under section 37(1) of the FOI Act, and that none of the exceptions to section 37(1) (including the public interest balancing test at section 37(5)(a)) require their release.
While Tenderer B has, essentially, indicated that they will leave it to this Office to determine the question of release of the remaining records that affect their interests, I do not consider this to amount to express consent to the release of those records. Tenderer C has not consented to the release of any records that affect its interests. As already explained, this Office did not consult with any of the other tenderers. Thus, I consider no other records to fall to be released under section 36(2)(a).
The applicant maintains that the exception at 36(2)(d) applies. He says the bidders were invited, when submitting the tenders, to tell the Council what information therein was considered to be commercially sensitive or confidential. He argues that if they have not identified such information, then their tenders are releasable under section 36(2)(d), or that they have, essentially, consented to the release of their tenders by default.
The relevant provision from the tender documentation says that the Council is "entitled" to disclose information about the competition. The tenderers were told to "clearly state" if information was commercially sensitive or confidential, and give "substantive reasons". The excerpt concludes by saying that the Council would have regard to such details in considering release under FOI, but was "not bound" by them. Neither the Council nor Tenderers B and C have commented on the applicant's contention, although they were invited to do so.
I do not consider it appropriate to interpret this provision as the applicant has done. The excerpt seems to me to have the aim of ensuring that Council would have as many relevant considerations before it as possible when deciding on an FOI request for relevant records. It could not possibly mean that all information provided by a private sector company to the Council, in the hope of winning a tender, would fall to be released to the world at large unless properly identified as commercially sensitive or confidential. This is all the more unreasonable a proposition in the case of tenderers who were not successful and/or did not ultimately receive public monies. Furthermore, section 36 is mandatory. It is not the case, as the applicant also argues, that an FOI body is only permitted to classify information as commercially sensitive when the party to which the information relates requests that the information be treated as such. Indeed, if the applicant's view were to be accepted, and in the event that he had not adequately identified any confidential or commercially sensitive information in his own company's tender, that document would be releasable to the world at large on foot of any FOI request that might be made for it by a third party.
I see the relevant excerpt as an indication to the party that is awarded the contract that it cannot reasonably expect that all details of its tender, and ensuing arrangements between it and the body awarding the contract, will remain secret indefinitely. That said, I would not consider the excerpt to suggest that all information relating to the successful tender will be released under FOI.
Accordingly, I do not consider section 36(2)(d) to apply in this case. Neither do I consider any of the other exceptions in section 36(2) to apply in the case at hand.
Section 36(3) - The Public Interest
Section 36(3) provides for release of a record to which section 36(1)(b) applies where the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.
On the matter of where the public interest lies, I have had regard to the obiter comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these obiter comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
The applicant has made no arguments as to why the public interest might warrant release of the records. For avoidance of doubt, any interest his company may have in obtaining the records because of its dissatisfaction with the outcome of the tender process is a private interest and one that I cannot take into account. Neither have I any remit to direct release of exempt records in the public interest because of the applicant's contention (albeit made regarding legal professional privilege) that "[t]he events surrounding the award of the relevant contract involve procurement and competition issues related to the public interest and may involve criminal or fraudulent conduct or conduct contrary to the interests of justice."
In favour of granting a request is the public interest in ensuring the openness and accountability of FOI bodies. There is a public interest in ensuring openness and accountability in respect of the Council's management of the tender process and the award of the relevant contract; the Council's expenditure of public monies; and the Council's management of the contract/project.
This has to be balanced against the public interest, recognised by section 36(3) of the Act, in protecting the release of information to which section 36(1)(b) applies. The question I must consider is whether the public interest served by granting the request, and releasing information that I have found to be exempt under section 36(1)(b), sufficiently outweighs the public interest in protecting that information.
The public interest in favour of release has been served to a certain extent by the material released to date, as well as the information "already provided to the [FOI] applicant". In particular, the identities of the unsuccessful tenderers and the amounts they tendered are already in the public domain. However, I accept that the public interest in favour of release would be further served, albeit to varying degrees, by release of the records at issue. In this regard, it is relevant that only Tenderer C benefitted from public monies and performed the contract. In a general sense, therefore, the public interest in favour of release is entitled to more weight when considering records relating to Tenderer C than it is when considering records relating to Tenderer B and especially when considering records relating to the other tenderers. I consider this to be the rationale behind what I have described as the tender documentation's indication to the successful tenderer that it cannot reasonably expect that all details of its tender, and the ensuing arrangements between it and the Council, will remain secret indefinitely. However, and as I have also already said, the public interest would not necessarily require release of all information relating to Tenderer C and the contract awarded to it.
As already stated, in considering the public interest in withholding the records, this Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies, not third parties generally, conduct their operations. That said, I recognise that the weight of the public interest against release varies. Some records are more commercially sensitive, and would cause more harm to the relevant third party if released, than others. For instance, the details in the tenders submitted are more sensitive than, say, the letters issued to the unsuccessful tenderers comprising record 9. A further example is records of communications between the Council and Tenderer C about the rollout of the works. All such records give a general insight into the Council's overall management of a project of this nature but some reflect the Council's needs and requirements much more than they do Tenderer C's operational abilities. Thus, less harm would be caused to Tenderer C through release of the former class of records than the latter.
Having considered the records remaining at issue, and the various matters outlined above, I do not consider the public interest to warrant release of any further information about the unsuccessful tenderers, including Tenderer B, or the names of any subcontractors referred to in the records at issue (that is, given the context in which they are mentioned). To avoid any confusion on the matter, I do not consider the public interest to warrant release of any information from record 9, or the brief reference to Tenderer B in record 49. While the various details may not be particularly sensitive, I consider the weight of the public interest in protecting them to be greater than that in favour of release, which is minimal given the material about the those tenderers that is already in the public domain.
I consider the weight of the public interest to warrant release of certain information from the records at issue concerning Tenderer C, as set out in the attached Appendix. Generally speaking, I consider release of the details concerned to strike an appropriate balance between providing a greater insight into the Council's overall management of the tender process and the contract, and minimising the impact of release on Tenderer C.
Furthermore, the records concerned are to be released subject to the further deletion of the email address and mobile number of Tenderer C's contract manager, where contained in the records. I consider these details to be the individual's personal information that is not of a sort that, unlike his name in the circumstances of this case, falls under the exception to the definition of personal information where a service provider is concerned. I should make it clear that I consider any references in the above records to other staff of Tenderer C, and to personal gmail addresses, to amount to personal information of those parties. These details should also be redacted from the records that I direct be released, whether in full or in part, as set out in the attached Appendix.
I find such personal information in the records, and any further personal information that is specified in the attached Appendix, to be exempt under section 37(1) of the FOI Act, and that none of the exceptions to section 37(1) (including the public interest balancing test at section 37(5)(a)) require its release. I should also make it clear that I do not consider any further information in record 51 to comprise personal information, given the general nature of the locations given.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision.
I find the Council not to have justified its effective refusal of further records relevant to the request under section 15(1)(a). I direct that it consider and make a decision, in accordance with the provisions of the FOI Act, on what is essentially a fresh request for such records. The Council's decision is subject to the usual rights of internal review and external review by this Office.
I affirm its refusal of the records withheld under section 31(1)(a) with the exception of those elements of these records that comprise correspondence received from the applicant, which I direct be released.
I also affirm the refusal of the various records withheld under section 36, on the basis that I accept them to be exempt under section 36(1)(b). However, I direct the release of records 28 and 29 further to section 36(2)(a) of the FOI Act, subject to the redaction of email addresses of employees of the company concerned. I also direct the release of certain other records, to the extent specified in the attached Appendix and also subject to the redaction of further personal information described generally in the above decision, in accordance with section 36(3) of the FOI Act.
Furthermore, I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Council to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Elizabeth Dolan
Senior Investigator
Record / Extent to be Released