Whether the IADT was justified in deciding to refuse access to records relating to a tender competition for the provision of film equipment for the National Film School, IADT on the basis of sections 10(1)(a), 20(1), 22(1)(a), 26(1)(b) and 27 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicants made an FOI request to the IADT on 4 July 2013 seeking access to records relating to a tender competition for the provision of film equipment for the National Film School, IADT. According to the IADT, the applicants represented one of the unsuccessful tenderers in the tender process and the IADT enquired if the applicants had made the request on behalf of its client. As the applicants declined to provide that information, the IADT stated that it would consult with third parties including all unsuccessful tenderers. In its decision of 2 August 2013 the IADT granted the request in part pending its consultations with third parties. On 28 August 2013 the IADT released additional records (including records, with consent, relating to the unsuccessful tenderer whom the applicants previously represented) and refused access to the remaining records on the basis of sections 20(1), 26(1)(b), 27(1)(a), (b) & (c) 31(1)(b) & (c) and 10(1)(a) of the FOI Act. The applicants sought an internal review of the decision on 6 September 2013. In its internal review decision of 30 September 2013, the IADT decision maker upheld the original decision but stated that section 31(1)(b) no longer applied to the records due to the passage of time.
On 14 October 2013 the applicants applied to the Information Commissioner Office for a review of the IADT's decision. When requested, the IADT sent a box of records to this Office for the purposes of this review. The records forwarded appeared to be in seven batches although they included a large volume of unnumbered and apparently unrelated pages. This Office returned the records to the IADT with a request that it number the records and provide a more detailed schedule to assist the review. The IADT than supplied an amended schedule of records stating that the records had been numbered. However, the rescheduled records were divided into 65 batches with some groups containing numerous miscellaneous documents, withheld on the basis of a number of exemptions. Ms Alison McCulloch, Investigator in this Office, wrote to the IADT on 29 July 2014 stating that she proposed recommending that the Commissioner annul the decision and direct the making of a new decision as it appeared that the IADT did not undertake any substantial consideration of the content of the records. She referred, by way of example, to record number 58 which contained approximately 500 unnumbered pages comprising various documents, including emails, to which access had been refused on the basis of four different exemptions some of which, on the face of it, had no relevance to the content of the records. Ms McCulloch suggested that a further examination of the records be carried out by IADT. Following this, it agreed to release records numbered 39, 40, 42, 43, 47, 48, 49, 50, 51, 52 (part), 56 (part), 58a, 58(b) (part), 65a and 65(b) (part) using the numbering system adopted by the IADT. It also relied on additional sections of the FOI Act - namely sections 22(1)(a) and 21(1)(c) - in withholding records numbered 31, 35, 60 and 62. The larger groups of records were also divided into three different parts - (a), (b) and c). The IADT stated that its decision maker had carefully considered each record in the context of the FOI Act.
On 31 October 2014, Ms McCulloch, wrote to the applicant outlining her preliminary views on this case. The applicants responded on 3 November 2014 stating that they had no further comment. I consider that the review should now be brought to a close by way of a formal, binding decision.
In reviewing this case I have had regard to the following:

the IADT's decision on the matter,
the IADT's communications with this Office,
the applicants' communications with this Office,
communications between the applicants and the IADT on the matter,
the content of the records

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

Records numbered 31, 34, 35 and parts of 58b and 58c were created after the date of the FOI request and are, therefore, outside the scope of this review. Accordingly, this review is concerned solely with the question of whether the IADT was justified in refusing access to the remaining withheld records/portions of records on the basis of various sections of the FOI Act. These records/parts of records are numbered 1, 2, 32 - 33 and 36 - 65(c). Most of the numbered records contain many pages of documents.

Analysis and Findings

Preliminary Matters
The IADT made reference to section 29 of the FOI Act when notifying third parties that it was considering release of certain records in the public interest. However, given that the applicant was informed by the IADT of a right to internal review of its original decision, that the section 29 time limits for submission of a review application to this Office could not be adhered to and exemptions other than those to which section 29 applies were considered, it seems to me that this review must be dealt with as one to which the provisions of section 29 do not apply i.e. a decision to refuse a request under section 7 of the Act.
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

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. This view of the Commissioner's role was endorsed by the High Court judgment of Ó Caoimh J. in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116.

Furthermore, while the Commissioner is required by section 34(10) of the FOI Act to give reasons for his decisions, there is a requirement in section 43 that he take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. He must also refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. These constraints mean that, in the present case, the extent to which the records can be described is limited.

I also 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 22(1)(a)
In its submissions, the IADT argued that section 22(1)(a) of the FOI Act applies in respect of its refusal of access to certain records. Section 22(1)(a) provides for the withholding of a record where it would be exempt from production in proceedings in a court on the ground of legal professional privilege. The Commissioner accepts that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

confidential communications made between the client and his/her professional legal advisor for the purpose of obtaining and/or giving legal advice, and
confidential communications made between the client and a professional legal advisor or the legal advisor and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation.

Unlike many of the exemptions in the Act, this exemption does not contain a public interest balancing test. I have examined the records withheld by the IADT under section 22(1)(a) and am satisfied that their content falls within one or other of the two limbs of Legal Professional Privilege as described above. I find that section 22(1)(a) applies to exempt from release records numbered 60 and 62 and the email dated 3 July 2013 from the IADT among the documents in the batch numbered 58c.

As records numbered 31 and 35 post date the FOI request and therefore outside the scope of this review and records numbered 60 and 62 have been found to be exempt on the basis of section 22(1)(a) of the FOI Act, there is no need for me to consider section 21(1)(c) which the IADT also cited in respect of these records.

Section 27
The withheld records comprise expressions of interest and tender documents from successful and unsuccessful tenderers for the provision of film equipment, letters to unsuccessful tenderers notifying them of the outcome of the competition, handwritten notes of tender meetings and various administrative emails. The IADT relied on the exemptions at section 27(1)(a), (b) and (c) among other exemptions to refuse access to the majority of the records.

Section 27 of the FOI is a mandatory exemption which 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."

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 (on www.oic.gov.ie), the former Commissioner, the late 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. The IADT did not identify any trade secrets or provide any justification as to why it considered that section 27(1)(a) applies to these records. Accordingly, having regard to the section 34(12) provisions referred to above, I find that refusal of access under section 27(1)(a) has not been justified. However, it is necessary to examine the other provisions of section 27 also cited by the public body in this case.

Section 27(1)(b) and (c)
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.

Section 27(1)(c) protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. I would expect that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure. I note that no such explanations have been provided by the IADT and in fact that the tender competition has now been completed.

It is useful at this point to refer to 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. He 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."

The IADT argued that the withheld records contain commercially sensitive information. Insofar as it identified any harm that could occur should the records be released, it pointed to the impact on its capacity to attract future tenders for equipment and services. It further said that it considers it inappropriate for responses received from tenderers to be issued to unsuccessful bidders.

When contacted by the IADT, the successful tenderer said that it did not object to the total price being disclosed under FOI. However, it stated that release of the composition of that price, being the detail of the line price, would be harmful to the company and its suppliers. It said that it negotiates with its suppliers on an individual basis to agree such pricing based on a duty of confidentiality. It argued that its suppliers negotiate different prices with each of their customers based on a number of factors and that the negotiations and prices agreed are confidential and not known to any other party. Its position is that the potential harm to the company is "significant and is disproportionate in relation to the need for public transparency". It identified its management accounts and line item pricing for the individual elements of equipment as being especially sensitive and confidential. In relation to all the other information it said that it was content to allow the IADT to make the judgement on the merits of its disclosure.

The unsuccessful tenderer objected to the release of its tender document on the basis that it included manufacturers' part codes and bid pricing on the majority of items. It argued that to disclose any part of the tender that is relevant to cost - which it said is the entire tender document - would have a detrimental impact on its core business.

The applicants expressed the view that the information at issue could not result in material financial loss or gain to the successful tenderers. They quoted from previous decisions of the Commissioner concerning tender documents, including the decision in Case 98188 referred to above.

On balance, I accept the argument put forward that a material financial loss could reasonably be expected to result in the disclosure of the tender information. It is a closer question as to whether the identity of the unsuccessful renderers where it appears without financial or other tender information qualifies for exemption under the FOI Act. However, given the limited number of tenderers involved in this case and the specialised nature of the service involved, I also accept that disclosure of the identifying details in the records through FOI could prejudice the competitive positions of unsuccessful tenderers with respect to any similar tender competition in the near future. Therefore, I accept that section 27(1)(b) applies to much of the withheld information including correspondence between IADT and unsuccessful tenderers.

In relation to records containing technical advice given to the IADT on its requirements by certain companies consulted by it, I agree with Ms McCulloch's view that those records do not qualify for exemption under section 27 since they do not disclose prices or specific product information. While some of them do provide analysis of the needs of IADT in relation to the facilities proposed, I am not satisfied that it is reasonable to expect at this stage that such advice would result in a material loss or gain to the person to whom the information relates or to prejudice their competitive position under section 27.

Where it is found that section 27(1) applies, there is a further provision within section 27, at sub-section (3), which provides for the release of information which is commercially sensitive where such release is in the public interest.

Section 27(3)
Section 27(3) of the FOI Act provides that the exemptions contained in section 27(1) are not to 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 .....".

There is a very significant public interest in ensuring the maximum openness in relation to the use of public funds. Such openness is a significant aid to ensuring effective oversight of public expenditure, to ensuring the public obtains value for money, to preventing fraud and corruption and to preventing the waste or misuse of public funds. Openness in relation to public expenditure is an important additional safeguard against fraud, waste and misuse of funds. I consider that the public interest in openness about public expenditure is of very great significance. There is also a public interest in ensuring that the tender process was conducted thoroughly and fairly.

The public interest factors in favour of disclosure have to be balanced against the public interest served by non-disclosure. The main consideration on this side is the public interest in enabling businesses to operate without undue difficulty or unfair competition. The extent of any harm which might result from disclosure, and the likelihood of its occurrence, are relevant factors here. There is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result; it is this public interest which section 27(1) seeks to protect. However, there is also a very strong public interest in government being open and accountable and the FOI Act, both in its Long Title and in individual provisions, recognises such wider public interests. In attempting to strike a balance between openness, on the one hand, and the need to protect commercially sensitive information, on the other, I have considered both the positive public interest which is served by disclosure and the extent to which disclosure may be contrary to the public interest.

According to the IADT, the overall price of the bid by the successful tenderer was released to all interested parties including the applicant. I do not consider that release of the item line pricing or management accounts of the successful tenderer is necessary in order to ensure effective oversight of public expenditure given the commercial harm to the company which could be caused given the specialised field in which it operates. Having weighed up the competing public interest arguments in this case it is my view that the public interest in the release of this specific information does not over-ride the commercial harm that such release could, in my view, cause to the company. There is a relatively small amount of other information involving the evaluation of the tenders by the IADT which does not disclose item line pricing or management accounts of the successful tenderer. I consider that the public interest warrants release of this where it is practicable to do so having regard to the provisions of section 13 of the FOI Act.

With respect to records relating to the unsuccessful tenderers, I agree with the often stated position of this Office that 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. As there is no expenditure of public funds on unsuccessful tenders, I find that, on balance, the public interest in withholding such information outweighs the public interest in releasing it. I find, therefore, that section 27 does apply in relation to the tender documents and any of the records relating to the unsuccessful tenderers in this case that would allow for such unsuccessful tenderers to be identified.

In this regard, I find that records numbered 33, 36, 37, 41, 44, 45, part of 58c, 61, 63, and 65b are exempt on the basis of section 27(1)(b) and that the remainder of the withheld records should be released subject to the withholding/redaction of the following information:

1. copy of the Management Accounts and the line item pricing for the individual elements of equipment provided by the successful tenderer
2. tender information provided by the unsuccessful tenderers including commentary and marking relating to these and correspondence between them and the IADT
3. Identities of the unsuccessful tenderers .

I accept that redacting the information of the unsuccessful tenderers in such records as number 38, 46, 53, 54 and 65C where the information of the successful and unsuccessful tenderers is intertwined could result in the records being misleading and I do not consider that these fall to be released in the circumstances.

Section 26(1)(b)
The IADT in refusing access to the records at issue also cited section 26(1)(b) which is a mandatory exemption that applies where:

" disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.".

Under section 26(2), however, the confidentiality exemption does not apply to a record prepared by a staff member of a public body or a person who is providing a service for a public body under a contract for services "in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services".

As I have found that the records provided by the unsuccessful tenderers are exempt on the basis of section 27(1)(b) I do not need to consider them further. The same applies to the copy of the Management Accounts and the line item pricing for the individual elements of equipment provided by the successful tenderer which I have already found to be exempt from release.

In relation to the remainder of the successful tender records and the information in various internal records not already found to be exempt, I note that the confidentiality clause in the agreement between the IADT and the successful tenderer includes a clause that in the event of an FOI request "the supplier shall identify any information that is not to be disclosed on grounds of commercial sensitivity". The confidentiality clause further states that the final decision on disclosure rests with the Office of the Information Commissioner and ultimately, the Courts. The position of the IADT is that under EU Procurement Regulations, the information in the records should be held in confidence. I note that Ms McCulloch, Investigator, notified the successful tenderer on 29 October 2014 of her intention to recommend that in this case section 26 did not apply to exempt material other than the Management Accounts and Line item pricing for individual elements of equipment. No response was received to her letter. I am not satisfied that the public body in this case has justified its decision that release any of the remaining information would constitute a breach of a duty of confidence owed by it to the successful tenderer as provided for in an agreement or otherwise. I find accordingly.

Section 20
Section 20 provides that a head may refuse to grant a request for a record "if the record concerned contains matter relating to the deliberative processes of a public body (including ...the results of consultations, considered ... for the purposes of those processes)." Section 20(1) is subject to a public interest test under section 20(3). The IADT cited the section 20 exemption in relation to certain withheld records. Ms McCulloch suggested in her preliminary view letter to IADT that the deliberative process was no longer ongoing once the contract had been awarded and that section 20 might not be relevant at this stage. In its response, the IADT explained that the deliberative process was ongoing when the FOI request was being dealt with in 2013. It also queried whether the exemption was restricted to "ongoing deliberations".

The deliberative process can be described as a "thinking process" that refers to the way a public body makes decisions. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Even if parts of the tender process fell within the terms of section 20, it would be necessary to consider whether, on balance, the public interest would be better served by granting the request. I note that the many parts of the tender documentation are largely factual in nature and thus would be excluded from the deliberative process exemption by virtue of section 20(2)(b). Given my findings in relation to the public interest under section 27 and the other exemptions and having regard to section 34(12)(b) of the FOI Act, I am not satisfied that refusal of access to any of the withheld records under section 20(1) of the Act is justified at this point in time. I find accordingly.

Section 10(1)(a)
This section provides that a head may refuse a request where:

"the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".

The IADT stated that the minutes of internal meetings do not exist as it is not its policy to take minutes of internal procurement meetings and that the output of such meetings forms the tender documents themselves which have been released. I see no reason not to accept this position; I believe it is reasonable to take it that such records do not exist and I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the IADT. I affirm the decision to withhold records numbered 33, 36, 37, 41, 44, 45, 58c (email dated 3 July 2014 from the IADT and correspondence/drafts of correspondence to and from an unsuccessful tenderer), 60, 61, 62, 63, and 65b. I further direct the release of the records 39, 40, 42, 43, 47, 48, 49, 50, 51, 52, 56, 58a, 58(b), 65a and 65(b) (part) as agreed by the IADT and the remainder of the withheld records subject to the withholding/redaction of the following information:

1) copy of the Management Accounts and the line item pricing for the individual elements of equipment provided by the successful tenderer
2) information provided by the unsuccessful tenderers including correspondence between them and the IADT
3) Identities of the unsuccessful tenderers.

As indicated in the analysis above, I accept that redacting the information of the unsuccessful tenderers in such records as number 38, 46, 53, 54 and 65C where the information of the successful and unsuccessful tenderers is intertwined is not practical and could cause the resultant record to be misleading; I am not directing the release of such records However, in the case of other records in respect of which the IADT disagrees with this Office's position (e.g. records or parts of 1,2, 52, 56, 58b, 64), I wish to point out by way of clarification that only the information found to be exempt in this decision is to be withheld.

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