Whether the OPW was justified in its decision to refuse access to records relating to the tender for the provision of a managed e-tendering service including information supplied by the successful tenderer (the Company) on the basis of section 27 of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act

Background

The applicant made a request to the OPW on 24 January 2013 for access to "all records (including papers documents and electronic records), dating from 1 December 2009 to 31 December 2012, of communications between the Company and the Office of Public Works/ National Procurement Service (the OPW/NPS) regarding (i) [the Company's] participation in tender procedures for the provision of a managed e-tendering service, and (ii) the existing contract between [the Company] and the OPW for e-tendering services." As I understand it, the records concern the successful tenderer to whom the contract was awarded. The OPW granted the request in part in its original decision of 22 May 2013 and refused access to certain records on the basis of section 27 of the FOI Act. In its internal review decision of 4 July 2013, the OPW released additional records and upheld the original decision to refuse access to certain records. The OPW did not indicate which sub section(s) of section 27 it was relying on.
On 1 August 2013, the applicant wrote to this Office seeking a review of the OPW's decision. He stated that the OPW had provided no reasoning whatsoever for its view that the records are commercially sensitive and that it had not considered the public interest test. Following communications between this Office, the OPW and the Company additional records were released on 17 September 2014. On 25 September 2014, Ms Alison McCulloch, Investigator in this Office wrote to the applicant outlining her preliminary views and the applicant responded on 13 October 2014. I consider that the review should now be finalised by way of a formal, binding decision.
In reviewing this case I have had regard to the following:

• the OPW's decision on the matter,
• the OPW's communication with this Office,
• the applicant's communications with this Office,
• communications between the applicant and the OPW on the matter,
• the content of the withheld records, provided to this Office by the OPW for the purposes 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.

Scope of the Review

This review is concerned solely with the question of whether the OPW was justified in refusing access to the withheld records on the basis of section 27 of the FOI Act.

Analysis and Findings

Section 13
Firstly I should draw attention to section 13 of the FOI Act which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 27
The OPW refused access to the withheld records on the basis of section 27(1) of the FOI which is a mandatory exemption and provides:

"a head shall refuse to grant a request under section 7 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."

The records relevant to this review concern a tender competition to provide the eProcurement portal www.eTenders.gov.ie to the National Procurement Service of the OPW. The withheld records comprise of the Tender Response Stage 2, Security Incident Response Plan, Disaster Recovery Procedure Plan, and the breakdown of costs of the successful tenderer.

In its submission to this Office, the OPW clarified that the records were withheld under section 27(1)(b). 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. 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.

The word "could" in the provision allows for more generous latitude in refusing to grant access on the ground of perceived harm than the word "would". In relation to the second bullet point above, it should be noted that this part of section 27(1)(b) can apply even where such harm is not certain to materialise but might do so. However, in invoking the phrase "prejudice", the damage likely to occur as a result of disclosure of the information sought must be specified with a reasonable degree of clarity.

Given the applicant's references to UK cases, I feel that it would be useful at this point to set out the following from the former Commissioner's decision in Case 98188, Mr. Mark Henry and the Office of Public Works (25 Nov. 2001), available at www.oic.gov.ie in which the late Mr Kevin Murphy provided the following general guidance regarding records relating to a tender competition:
"First, public bodies are obliged to treat all tenders as confidential at least until the time that the contract is awarded.  Second, tender prices may be trade secrets during the currency of a tender competition, but only in exceptional circumstances would historic prices remain trade secrets. As a general proposition, however, I accept that tender documents which would reveal detailed information about a company's current pricing strategy or about otherwise unavailable product information could fall within the scope of section 27(1)(a) of the FOI Act even following the conclusion of a tender competition.  Third, tender prices generally qualify as commercially sensitive information for the purposes of sections 27(1)(b) and (c) of the FOI Act.  Depending upon the circumstances, product information can also be considered commercially sensitive under section 27(1)(b).  Fourth, when a contract is awarded, successful tender information loses confidentiality with respect to price and the type and quantity of the goods supplied.  The public interest also favours the release of such information, but exceptions may arise (see Telecom Eireann and Mr Mark Henry, Case Number 98114.  Fifth, other successful tender information which is commercially sensitive (for example, details of the internal organisation of a tenderer's business, analyses of the requirements of the public body, or detailed explanations as to how the tenderer proposed to meet these requirements) may remain confidential.  Disclosure in the public interest ordinarily would not be required, unless it were necessary to explain the nature of the goods or services purchased by the public body.  Sixth, unsuccessful tender information which is commercially sensitive generally remains confidential after the award of a contract, and the public interest lies in protecting that information from disclosure.  I must stress, however, that no tender-related records are subject to either release or exemption as a class; therefore, each record must be examined on its own merits in light of the relevant circumstances.  general summary of my views to date regarding records relating to a tender competition."

The applicant is of the view that the withheld records are not commercially confidential "because the key service proposals included therein were accepted by OPW and have been developed into a website (www.etenders.ie) that is accessible to the entire public". However, it is accepted by this Office that, generally speaking, undisclosed, detailed information about a successful tenderer's business together with understanding of and approach to a particular project remains confidential and commercially sensitive following a tender competition. In his email of 13 October 2014 the applicant quoted from decisions of the UK Information Commissioner. I do not agree that the issues are very similar to those in the current case in that several appear to relate to services such as taxis and heating maintenance as opposed to the larger, more technically specialised service at issue here. I stress also that each record must be examined on its own merits as opposed to "class" exemptions being applied and furthermore that much of the successful tenderer's information has already been released in this case. It is important to note also that the UK FOI legislation differs from the Irish legislation and that, in any case, the findings of FOI authorities from abroad are not binding on this Office.

In this case, the OPW states that "ETenders is not a simple website which users can browse for information. It is a highly complex system that is fronted by a web browser. Its functionality includes inter alia, eAuctions, eSubmissions, eAwarding, eAssessment and eContract Management. Over €6 Billion worth of business is conducted through the eTenders portal on a yearly basis. It is vital that the system is secure so that all parties using it can have complete confidence that tenders and confidential company information submitted are kept completely confidential and available only to the appropriate procurement officer after the electronic tender box is opened."

According to the OPW, in its tender document the Company provides information about its security systems and procedures so that the NPS could be assured that the security around the data stored and the tenders submitted was to the highest industry standard. It says that the withheld records include all references to security arrangements around hosting, physical and logical architecture, risk assessment, information security policies and procedures and are exempt on the basis that the records contain commercially sensitive information.

The Company, which was invited by this Office to make its views known as a party potentially affected by the review decision, states that release of these records would cause significant damage to the company and the majority of its clients across the EU including over 8,000 authorities and several EU Member States. It also says that details of its servers, configurations, disaster recovery regimes, business continuity procedures etc. in the hands of industrial competitors would mean significant vulnerability to the information and services managed. It argues that, if this information was released, all services would have to be re-established with new configurations, locations, changes in replication paths etc. which would be costly and time consuming.

The applicant states that, in his view, the commercial confidentiality would have diminished with the passage of time. This may well be true of some tender information. However, it appears to me that, in this case, the commercial security of the system itself which contains sensitive information is what is at issue and the significance of the passage of time is not major in a project of this type. Having considered the matter carefully, I conclude that the OPW's contention that release of the information at issue could cause commercial harm to the Company is reasonable. I am satisfied that the information contained in the records is commercially sensitive and is exempt on the basis of section 27(1)(b); I find accordingly 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, on balance, the public interest would be better served by granting the request than by 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 refers to previous decisions of the Commissioner where it was found that, as successful bidders are in receipt of a benefit from the State the public interest lies in release of tender documents even if release might cause commercial damage. He feels that there is a public interest in releasing the withheld information in order to hold public bodies to account in the spending of public monies. According to the OPW, the overall price of the bid by the Company was released to all interested parties including the applicant. In this regard, I consider that the OPW has already demonstrated accountability in the performance of its functions through release of the majority of the information. Therefore, I do not consider that the public interest requires release of the remainder of the records which could cause commercial harm to the Company. I consider that this to be consistent with the approach of the former Commissioner as detailed above having regard to the nature of the information at issue. I conclude that, on balance, the public interest in the release of the withheld information would not be better served by granting the request insofar as it relates to the remaining records.

I find therefore that the OPW was justified in withholding the relevant information on the basis of section 27(1)(b) of the FOI Act.

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 OPW in this case.

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. Any such 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.

Elizabeth Dolan
Senior Investigator