Decision
Mr X and Donegal County Council
From Office of the Information Commissioner (OIC)
Case number: 130013
Published on
From Office of the Information Commissioner (OIC)
Case number: 130013
Published on
Whether the Council was justified in its decision to refuse a request for access to records in relation to a tender under section 7 of the FOI Act in accordance with the provisions of section 27 of the FOI Act.
27 February 2014
On 8 June 2012, the applicant made an FOI request to Donegal County Council requesting records relating to a successful tenderer for a particular contract and specifically requested a copy of the "Certificate of Compliance for Pension and Sickness Scheme showing the number of employees registered". The Council in its decision dated 2 July 2012 granted access to a number of records but refused access to two records on the basis of section 27(1)(a) of the FOI Act, stating that the information withheld was considered to be commercially sensitive information. On 9 July 2012, the applicant requested an internal review of this decision. On 17 July 2012 the Council issued its internal review decision granting partial access to the two records originally withheld. On 15 January 2013, the applicant made an application to the Information Commissioner for a review of the Council's decision.
During the course of this review the applicant clarified that the only outstanding information which he seeks relates to a letter of compliance e-mailed to the Council by the company which was the successful tenderer. That record was released to the applicant by the Council at internal review with two redactions - (a) the Employer ID No. and (b) the number of employees registered with the Construction Workers Pension Scheme (CWPS). The number of employees as referred to at (b) is the only information which the applicant is seeking.
I note that Ms Anne O'Reilly, Investigator, wrote to Donegal County Council on 28 March 2013 informing the Council of her preliminary view that section 27(1) does not apply to the redacted information sought by the applicant and that the specific record should be released in full. She invited the Council to submit any further comments that it considered relevant to the review. Ms O'Reilly also wrote to the company concerned on 17 June 2013 as an interested third party and indicated that this Office would be happy to consider any submission from the company in relation to this matter.
The company responded indicating that it did not wish this information to be released and the Council also made a submission rejecting Ms O'Reilly's preliminary view. I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting this review, I have had regard to the submissions of the applicant and the third party and to those of the Council. I have also had regard to the provisions of the FOI Acts and to the content of the record at issue.
This review is concerned solely with the question of whether Donegal County Council was justified, in terms of the provisions of the FOI Act, in its decision to refuse access to the information re the number of employees registered with CWPS, as contained in the e-mail dated 29 May 2012.
Before dealing with the exemptions claimed by the Council I should explain that while this Office is required by section 34(10) of the FOI Act to give reasons for its decisions, this is subject to the requirement of section 43 that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record.
The record in question is an e-mail dated 29 May 2012 submitted to the Council by a Company in the context of a tender process, regarding its registration with the Construction Workers Pension Scheme (CWPS). This record has been released to the applicant by the Council with the exception of a very small amount of information.
In carrying out my review in this case I have taken into account the applicant's requests to the Council, the Council's decision, submissions made to this Office by the applicant, the Council and the third party to whom the information relates. I have also had regard to the provisions of the FOI Act.
Applicability of Section 27
The Council refused access to the record on the basis that it contains commercially sensitive information and is exempt from release pursuant to the provisions of Section 27(1)(a) of the FOI Act. Section 27(1) of the Act provides that a request shall be refused if the record concerned contains -
(a) trade secrets of a person other than the requester concerned,
(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."
Section 27(1)(a)
Section 27(1)(a) protects records containing the trade secrets of a person other than the requester. In case number 98049, a previous Ombudsman, Mr. Kevin Murphy, explained his approach to determining whether information qualifies as a trade secret of a person within the meaning of section 27(1)(a) of the FOI Act. He considered the following factors relevant to the determination:
(1) the extent to which the information is known outside of the business concerned;
(2) the extent to which it is known by employees and others involved in the business;
(3) the extent of measures taken by the business to guard the secrecy of the information;
(4) the value of the information to the business and to its competitors;
(5) the amount of effort or money expended by the business in developing the information;
(6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
He also accepted that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit widespread publication. The Council did not provide any justification as to why it considered that section 27(1)(a) applies to this record, either in its original decision, its internal review decision, or its submission to this Office during the course of this review.
Having applied the test of 'trade secret' to the information at issue in this review (i.e. the number of employees registered with CWPS), I am satisfied that the information contained in the record does not constitute a 'trade secret' and that section 27(1)(a) does not apply.
Section 27(1)(b)
Section 27(1)(b) protects information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. The Council, in its response to Ms O'Reilly's preliminary view, stated that "we are still of the opinion that for {the applicant} to seek information about the number of employees paid up by a competing company at a point in time is commercially sensitive information and should be withheld under Section 27(b) (sic) of the FOI Act ". I am assuming that the Council intended to refer to s27(1)(b) of the Act.
The refused information comprises the number of the Company's employees registered with CWPS . I am satisfied that this information comes within the description "financial [or] commercial ...... information". However, the essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. This exemption protects information whose disclosure might reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.
As stated above, while I am required by the FOI Act to give reasons for my decision I must also have regard to section 43(3) of the Act which requires me to take all reasonable precautions to prevent disclosure of information contained in an exempt record. This means that the extent of the reasons which I can give in this case is limited. Having considered all views, the Council's, the Company's and the applicant's, I consider the company's contention that release of the information at issue could cause it commercial harm to be reasonable. Accordingly, I find that the exemption potentially applies, subject to consideration of the public interest under section 27(3) of the Act.
Public Interest
Where it is found that an exemption from release provided for in section 27 of the FOI Act applies, section 27(3) requires me to consider whether any public interest exists in release which outweighs the public interest in protecting the commercial interest in question. There is a public interest in the ability of private companies to submit commercially sensitive information to public bodies in the knowledge that it will be treated as such. There is also a public interest in supporting an environment that is conducive to the conduct of business. The applicant has stated that the tendering process requires that all employees of a successful tenderer are required to be registered members of a recognised pension scheme. The applicant has also stated that at the time the contract was awarded , the winning contractor had at least four other employees on hire to the Council. In his view all employees of the particular company employed by the Council at that time were required to be registered members of a pension scheme and he suspects that this was not the case here. He feels there is a public interest in releasing the withheld information in order to hold public bodies to account in the spending of public monies.
This Office has checked the tender documentation which makes it clear that the requirement under the tendering process is that "the Contractor/Supplier will be required to provide evidence prior to commencing any works of membership of a pension and sick pay scheme for all of their employees employed to work on Local Authority contracts ". The Council has provided evidence to this Office that the employee of the Company assigned to carry out the work which was the subject of this particular tender competition, was a paid up member of a pension scheme, and I am satisfied that the Council has carried out the tendering process and awarded the contract in accordance with its published procedures. In this regard I consider that the Council has already demonstrated accountability in the performance of its functions. Therefore, I do not consider that further demonstration of the public interest in openness and transparency in the way public bodies perform their duties is required through release of the remainder of the record which could, in my view, cause commercial harm to the Company. It is not within the remit of the Information Commissioner to examine the work practices of a public body generally or as in this case to require the Council to provide information in relation to the award of previous contracts. Having weighed up the competing public interest arguments in this case it is my view that the public interest in the release of the withheld information does not over-ride the commercial harm that such release could, in my view, cause to the Company.
I find therefore that the Council was justified in withholding the relevant information on the basis of section 27(1) of the FOI Act.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Council in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
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Sean Garvey
Senior Investigator