Whether the C&AG is justified in its decision to refuse a request for records made under section 7 of the FOI Act on the basis that they are exempt from release under the provisions of the FOI Act.

Case Summary

The Senior Investigator affirmed the public body's decision.

Date of Decision: 18.12.2009

Review Application to the Information Commissioner under the Freedom of Information (FOI) Acts 1997 & 2003

Background:

The FOI request in question was made on 5 December 2006 to the Office of the Comptroller and Auditor General. The Applicant sought access to or copies of the following information in relation to a tender for the supply and installation of interview video recording equipment for Garda stations located throughout the country. The Applicant particularly sought access to or copies of:

• all correspondence between the Garda Authorities/Department/GCE in relation to the permission to purchase the six systems;
• the Tender Evaluation Report and the attached marking sheets;
• all information relating to all correspondence that took place between the Garda authorities and each of the qualifying tenderers during the tender evaluation period;
• all the tender evaluation marking sheets that took place during the tender evaluation period for each of the equipment/systems delivered for tender evaluation;
• all information that confirms that another company's ["company b"] equipment had performed better than Company A's equipment in a number of ways;
• the requests that were made to all the referees and organisations that were contacted in order to provide references in relation to Company A and the equipment offered,
• the replies that were received from the referees and organisations that had replied to the Garda Siochana random requests in relation to Company A,
• the same information in relation to all the other tenderers and the equipment under evaluation .i.e. company b's "heavy duty -industrial standard" and "light duty -domestic type", as designated by the evaluation team;
• the information that record details of the tests conducted and the test results that will support each of the points identified above [Sections 4.2, 4.3, 4.4, 4.5, 4.6, 4.7 and 4.8];
• the information that record the details of the same tests conducted and the test results obtained in relation to the equipment under evaluation i.e. company b's light duty and heavy duty options,
• the other item of documentation referenced in Section 4.15 and 4.16 of the Report [Special Report No. 5]; 
• the information that relate to how the documents came to the attention of the C& AG.

In its decision of 24 January 2007 the C&AG refused the Applicant's request in accordance with section 46 of the FOI Act on the basis that the FOI Act did not apply to the records. On 13 February 2007 the Applicant sought an internal review of the C&AG decision to refuse him access to the information sought by him in his original request. In its internal review decision of 5 March 2007 the C&AG upheld its original decision that the records were not releasable under sections 26(1)(a) and 46(1)(c) of the FOI Act and refused to release any of the records requested. Section 26(1)(a) of the FOI Act applies to information received in confidence and section 46(1)(c)(ii) excludes any records relating to an audit, inspection or examination carried out by the C&AG from the scope of the FOI Act, apart from records relating to the general administration of that Office. The Applicant applied on 11 March 2007 to this Office seeking a review of the public bodies decision.

In response to preliminary views of this Office, the C&AG indicated on 28 May 2009 that it was agreeable to release certain documents or parts of documents in accordance with those preliminary views. The public body also indicated that they considered that other records or parts of records contained information which was commercially sensitive in accordance with section 27(1)(b) of the FOI Act should be properly withheld from release. Following completion of consultations with third parties to whom the records relate, the C&AG administratively released excepts and whole documents that had been originally withheld to the Applicant on 21 July 2009 including those parts of the records that related to the Applicant's tender. Further records were released on 19 August 2009 and again on 18 November 2009, relating to the request for specific information on award criteria, evaluation marks, costs and associated information including comments on the successful bidder. The public body withheld release of further records or parts of records on the basis of section 27(1)(b) of the Act. The Applicant was approached by this Office with a view to settle the case on the basis of receipt of those records and parts of records and indicated that he was not in agreement and wished for access to the remaining exempted records or parts of records and requested that the case proceed to a formal review and a binding decision .

Conducted in accordance with section 34(2) of the FOI Act by Mr. Seán Garvey, Senior Investigator, Office of the Information Commissioner, authorised by the Information Commissioner ("the Commissioner") to conduct this review.

Scope of Review

The applicant's original request was as set out above. Following release of information to the applicant the scope of the request has been reduced to information withheld by the C&AG which is considered to be commercially sensitive tender information and is not related to either the successful tenderer's bid that was proceeded with or to other tender information regarding the third tenderer that had not qualified for consideration. The review is thereby concerned solely with the question of whether or not the public body is justified, in terms of the provisions of the FOI Act, in its decision to refuse the applicant's request for further additional information on the grounds that section 27(1)(b) applies to those records or parts of records and whether the public interest would on balance be better served by granting than by refusing to grant the request concerned.

The applicant continues to maintain that he has a public interest right of access to the remaining exempted information.

I am therefore proceeding to a formal binding decision in this review.

Submissions

.

Findings

Preliminary Matters

In conducting this review I have had regard to the provisions of the FOI Acts and the relevant submissions of the public body as well as those of the Applicant and interested third parties, the contents of the records and to the additional information and clarifications provided by the parties concerned at the request of this Office. I wish to emphasise that, under section 34(12)(b) of the FOI Act, a decision by a public body to exempt a record from release is not justified unless it can be demonstrated to my satisfaction that the decision was, in fact, justified. This places the onus in the public body to justify its decision to refuse access to the records under section 27 of the FOI Act. It should also be noted that a review by the Commissioner under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.

I wish to point out that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions in the course of my review to prevent disclosure of information contained in an exempt record so as to preserve that party's right of appeal to the High Court. I must also advise that section 8(4) of the FOI Act precludes a public body from taking into account any reasons that a requester has for a request. Also for the avoidance of doubt I should add that the Commissioner does not have any role in examining how the public body or any other bodies involved dealt with the issue which is the subject of the Applicants request for information. The Commissioner's decision in case number 010355 involving the Applicant (available on this Office's website at oic.gov.ie) clearly set out that it is not the Commissioner's role to comment on the behaviour of the public bodies in this case regarding the actual tender process which gave rise to the Applicant's original FOI request.

Analysis and Findings

Section 27 of the Act deals with commercially sensitive information, and provides as follows:

Section 27(1) subject to subsection (2), a head shall refuse to grant a request under section 7 if the records 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) is further qualified by section 27(3) which provides that section 27(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 ...concerned. This means that, even if the record comes within the scope of section 27(1), it can still be released if the public interest would be better served by release of such a record.

I am taking it that it is contended that section 27(1)(b) applies in this case as no evidence has been raised the either section 27(1)(a) or (c) are applicable. Accordingly, I will focus my analysis on the application on section 27(1)(b) and whether or not it applies and if it does whether the public interest override test under section 27(3) is applicable to justify release in the public interest.

Section 27(1)(b)

I have reviewed the application of section 27(1) to the records that the C&AG submit are exempt from release on the basis that they are commercially sensitive.

In order to properly claim an exemption under section 27(1)(b), the C&AG has to justify an opinion that disclosure "could reasonably be expected to" give rise to a harm specified in the exemption. The decision maker must first identify the potential harm to the provider of the information that might arise from disclosure, and having identified that harm, consider the reasonableness of any expectation that the harm will occur. This means that for the C&AG to succeed in its arguments that such a harm based exemption was applicable in this case, the Commissioner would have to be satisfied that granting access to records or to those parts of records that are within scope of review could be reasonably 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 word "could" in this provision allows for more generous latitude in refusing to grant access on the ground of perceived harm than the word "would", so that section 27(1)(b) can apply even where such harm is not certain to materialise but might do so. Regarding section 27(1)(b) the essence of the test in this section is not the nature of the information but the nature of the harm which might be occasioned by its release. The provision protects 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.

It is relevant at this juncture to draw attention to a significant decision made by the previous Information Commissioner on the question of access to tender documents of bidders who were successful in a procurement competition undertaken by a public body (case no.98049, available on this Office's website at oic.gov.ie). Although this case relates more to references and assessments the request is for specific information regarding a tender and in my view the principles are the same. In the 10 years since the above case was decided this Office habitually finds that records relating to payments made by public bodies to service providers are releasable. In case 98049, the previous Commissioner found that, by and large, when successful bidders were in receipt of a benefit from the State (the contract with the public body following the procurement process), and that therefore, even if release of information from their tender documents might cause commercial damage, the public interest in holding the relevant public body to account for its use of public resources would be better served by release of such documents that it would be by withholding them. The release of records to the Applicant on the successful tender accords with that decision.

However, I likewise accept that certain excerpts of the records could cause damage to the successful bidder if information relating to their unsuccessful tender was released. This tender was separate to their successful bid, was separately costed, scored and assessed but was not evaluated against the Applicant's tender in comparison with that company's successful bid. Also no public expenditure arose in relation to that particular option. My view is that such information is commercially sensitive information and is properly exempt under section 27(1)(b) of the Act. Therefore as a harm has been identified with a reasonable expectation that it could occur through the release of the information in the withheld records, I am therefore of the opinion that section 27(1)(b) applies to the release of any further information. I find accordingly.

The Public Interest -Section 27(3)

That is not the end of the matter, however. Section 27(3) provides that a decision to refuse access to a record is not justified where the public interest would, on balance, be better served by granting than by refusing to grant the release of the record. Therefore it is now necessary for me to consider the public interest in accordance with section 27(3). The Applicant has submitted that the remaining exempted records should be released in the public interest.

To apply section 27(3), it is necessary to identify the various public interests served by the release of the particular record as well as those served by the withholding of that record. Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other.

I believe that the following public interest factors in favour of the release of the records in this case, under section 27(3) are:

• the public interest in individuals being able to exercise their rights under the FOI Act on order to enhance their understanding of the reasons for courses of action taken by a public body;
• the public interest in members of the public knowing how a public body performs its functions, as in this case, what a public body does to ensure effective oversight of public expenditure;
• the public interest in members of the public having the reassurance and knowledge that public bodies in their provision of a high level of service and foster openness in relation to public sector contracts, can disclose certain information, including tender information, in the public interest, and
• the public interest in increasing the openness and transparency of the processes of government, including value for money in public expenditure.

In considering the public interest factors which favour withholding the records I consider that the following factors must also be taken into account against release under those sections are:

• the public interest in public bodies being enabled to perform their functions including commercial undertakings effectively without undue interference;
• the public interest in ensuring that FOI is not used to release sensitive commercial information to the detriment of those bodies that provided it;
• the public interest in members of the public/ business community being able to communicate in confidence with public bodies, without fear of disclosure,in relation to actual confidential commercial matters,
• the public interest in public bodies providing a high level of public reassurance that they fully protect from disclosure information that is actually highly sensitive and commercially confidential; and
• the public interest in this case has been fully met in the release of records to the Applicant.

As I have indicated above the public interest test requires that a balancing test must be carried out on the basis of the specific circumstances of any given case. Consideration of the public interest, involves looking at the content and context of the specific information, and the likely effect of disclosure in order to determine whether, on balance, the public interest is greater in disclosure or withholding the remaining information held in the records. In further assessing the public interest balancing test applied in the case, I have yet again reflected on the public interest served by the granting of the Applicant's request on the one side, and on the other side, the public interest served by withholding release of further information and then determining, on balance, which approach best serves the public interest, in relating to the scope of the review concerning the individual records involved.

In assessing the public interest balance it is appropriate for me to express the view that, in principle, providing as much information as possible to the public about the awarding of successful tenders must be regarded as being in the public interest. Also there is a strong public interest served in ensuring the greatest level of transparency as possible in how the state and the parties were involved the particular issue. Likewise I fully accept that there is an equally strong public interest in keeping actual confidential and sensitive commercial information rightly remains confidential and is correctly withheld from release.

In view of the foregoing and having reviewed the information contained in the remaining parts of the records I am satisfied that the public interest is best served by refusing to grant the Applicant's request in relation to those other parts of the records which have been properly withheld. I find accordingly.

Decision

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 C&AG to refuse the Applicant's request and direct that the part of records were properly withheld in accordance with section 27(1)(b) of the FOI Act.

Right of Appeal

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 of this decision.

Seán Garvey

Senior Investigator

18 December 2009