Whether the Council was justified in its decision to refuse access to copies of successful tenders for legal services under section 27 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

Background

On 2 December 2013, the applicant submitted a request to the Council for certain records relating to a tender competition for the provision of legal services, including copies of the successful tenders received. On 19 December 2013, the Council issued its decision, providing the applicant with certain information relating to successful tenders but it did not grant access to the successful tenders.

The applicant sought an internal review of the decision to refuse access to the successful tender documents by way of letter dated 14 January 2014. The Council's internal reviewer issued his decision on 7 February 2014, refusing access to the records at issue under section 27(1)(b) of the FOI Act. 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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

During the course of the review, the applicant confirmed to Mr Mulligan of this Office, by way of email dated 30 September 2014, that it was willing to limit the scope of the review to the breakdown of figures making up the tender totals, as contained in the tender documents.

Accordingly, this review is concerned solely with the question of whether the Council was justified in refusing access under section 27(1)(b) of the FOI Act to the pricing schedules of each tender document which sets out a detailed breakdown of the individual pricing elements involved in each tender.

Analysis and Findings

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"

The standard of proof in relation to section 27(1)(b) is not a particularly onerous one in so far as prejudice to competitive position is concerned. The test is not whether harm is certain to materialise, but whether it might do so. The information at issue in this case consists of the pricing details provided by successful tenderers on various activities under a number of categories for which legal services may be required. The pricing schedules required tenderers to provide details of the fee to be charged under specified categories based on a fixed sum per transaction, a fixed sum per case, or on an hourly rate, depending on the activity and category involved, or based on a blended hourly rate in relation to the provision of general legal advisory services.

The Council made submissions setting out the apprehended effects of the release of the record. In particular, the Council stated 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 the 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 that it may lead to higher public expenditure as it would have a negative effect on competitiveness in the legal services market. The Council queried whether the request derived from commercial curiosity and in the attempt to gain a competitive advantage, rather than in the public interest.

The applicant 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 ... require to be a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

There is a public interest in openness, transparency and accountability of public bodies, particularly as regards the expenditure of public funds. I note that the Council provided the applicant with the overall tender figure for each of the successful service providers. In its original decision on the request, the Council explained that 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.

I note that the applicant has referred to previous decisions of this Office where it was found that successful tender information which may otherwise be exempt from disclosure on the grounds of commercial sensitivity lost its confidentiality with respect to price after the award of the contract. However, it seems to me that the information at issue in this case comprises more than simply the successful tender price. Disclosure of the information would also disclose the pricing strategy of the successful tenderers.

Having carefully considered the matter, I am satisfied, on balance, that the public interest would be better served by refusing to grant the request insofar as it relates to the figures contained in the pricing schedules to the tender documents. I therefore find that section 27(3) of the FOI Act does not apply to this information.

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 Council to refuse access to the pricing schedules, pursuant to 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 on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator