Decision
Ms X and Kildare County Council
From Office of the Information Commissioner (OIC)
Case number: 140193
Published on
From Office of the Information Commissioner (OIC)
Case number: 140193
Published on
Whether the Council was justified in its decision to refuse access in part to copies of successful tenders for legal services under sections 26, 27 and 31 of the FOI Act
Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
On 27 November 2013, the applicant submitted a Freedom of Information request to the Council for access to records relating to a tendering process for legal services by it in 2012. On 15 January 2014, the Council issued its decision, granting access to relevant records, subject to certain redactions.
The applicant sought an internal review of this decision by way of letter dated 12 February 2014. The Council's internal reviewer issued his decision on 5 March 2014, upholding the initial decision. On 21 July 2014, the applicant sought a review by this Office of the Council's decision.
I note that, in correspondence with the applicant, Mr. Niall Mulligan of this Office set out his view in relation to the exemptions claimed. The applicant offered no further submissions or correspondence to this Office. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.
In conducting my review, I have had regard to the Council's decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Council. I have also had regard to the provisions of the FOI Act and to the records in question, a copy of which have been provided to this office for the purpose of this review.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
In the course of this review, by way of email dated 24 September 2014, the applicant, in correspondence with Mr Mulligan, agreed to limit the scope of the review to those parts of the records relating to the breakdown of tender fees.
Therefore, this review is concerned solely with the question of whether the Council was justified in refusing access under sections 26(1)(a), 27(1)(b) and 31(1)(c) of the FOI Act to information contained Appendix H of each tender document which sets out a detailed breakdown of the individual pricing elements involved in each tender.
Section 27(1) of the FOI Act provides:-
"Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains...
(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"
In Henry Ford & Sons Ltd, Nissan Ireland and Motor Distributors Ltd and The Office of Public Works (Cases 98049, 98056, 98057), the Commissioner held that:-
"[T]he 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. The subsection 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."
The standard of proof in relation to section 27(1)(b) is not a particularly onerous one. All that is required is that the Council demonstrates the possibility of prejudice to the competitive position of the person in the conduct of their profession or business. The Council has made submissions setting out the apprehended effects of the release of the record. In particular, the Council states that the release of the information could give "service providers' competitors an unfair competitive advantage in future competitions", and would thus prejudice the competitive position of the parties concerned. I am satisfied that the threshold has been met and that the Council has demonstrated a potential prejudice to his competitive position of third party service providers.
Section 27(2) goes on to set out five specific sets of circumstances in which section 27(1) will not apply, none of which appear to me to be relevant to this case.
Section 27(3) provides that the exemption contained at 27(1) will be subject to a public interest test, in the following terms:-
"... subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."
The Council submitted that the public interest would not be better served by the release of detailed pricing information contained in successful tender documents, as it may have various detrimental effects on the ability of public bodies to tender effectively, for instance by deterring providers from offering preferential hourly rates in circumstances where other clients may become aware of the fact and through disrupting the level of competitiveness by allowing other firms to have regard to the make up of successful tenders in future competitions.
The applicant submitted that the decision of the previous Commissioner in Case 99183 (McKeever Rowan Solicitors and the Department of Finance) supports the release of the tender information in its entirety. However, it is important to note that, in that case, the former Commissioner found that the "fee information at issue [was] historic and ... admittedly out of date." The former Commissioner went on to state that, " I consider that any potential client or competitor is likely to understand that the firm's rates have changed."
In this case, I am satisfied that the information at issue is not historic. It relates to a tender competition which took place in mid-2013 and refers to the rates currently being charged by contractors to the Council. In my view, this represents a crucial distinction between the circumstances of this case and those operating in Case 99183.
The applicant also cited the public interest factors set out in the case of Case 080284 (ABC Ltd & Roscommon County Council) in submissions. It should be noted that this case pre-dates the judgment 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. In that case, Macken J commented that "any "public interest" would, in my view, require to be a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".
In Case 080284, the former Commissioner identified various public interest factors tending to favour the release of tender information. I am satisfied that these factors may be are elements of the recognised public interest in openness, transparency and accountability of public bodies, particularly as regards the expenditure of public funds. I note that the Council has released the overall tender figure for the successful tenders. I am satisfied that the public interest favoured the release of that information.
The applicant submitted that the former Commissioner in Case 98188 (Mark Henry and the Office of Public Works) had found that the, "successful tender information lost confidentiality with respect to the fee rates and other details necessary to understand the nature of the services contracted for". In fact, the finding in question was contained in the Commissioner's decision in Case 99183 (McKeever Rowan Solicitors and the Department of Finance). Disclosure of the information at issue in this case would disclose more than simply an agreed fee rate. It would also disclose the pricing strategy of the successful tenderers.
The price score for each tenderer was calculated based on an indicative number of cases/transactions/person hours for the various activities as described under the categories of services in the Invitation to Tender documents. It provided details of the total calculated price for each identified successful tenderer under each identified category. It seems to me that the public interest in openness, transparency and accountability of the Council in relation to the tender process in question has been served to some extent by the release of that information. While I accept that the release of the pricing schedules would further serve that public interest, I must balance that consideration against the public interest in companies being able to protect their competitive position and not be unduly disadvantaged through participation in a public tender process.
Having carefully considered the matter, I am not satisfied, on balance, that the public interest would be be better served by granting than by refusing to grant the request in relation to the detailed breakdown of pricing figures contained at Appendix H of the tender documents. I therefore find that section 27(3) of the FOI Act does not apply to this information.
The applicant also made a number of arguments relating to the exemption for confidential information under section 26 of the FOI Act, placing particular reliance on Case 99183. As I have found that the information at issue is exempt under section 27 of the FOI Act, it is not necessary for me to consider the other exemptions raised by the Council in its decision, being section 26 and 31 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 to refuse access to the pricing information contained at Appendices H of each tender document, except for the overall amount of the tender, pursuant to section 27(1)(b) of the FOI Act.
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.
Stephen Rafferty
Senior Investigator