Whether the Council was justified in refusing access to certain specified records relating to the Cavan Waste Water Treatment Plant upgrade works

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

Background

In a request dated 23 December 2013, and received by the Council on 30 December 2013, the applicant sought access to the following records relating to the Cavan Waste Water Treatment Plant upgrade works:

The Prequalification Submission of Company Y
The Final report on Prequalifications for the Tender competition, i.e. the Council's "Report on Suitability Assessment Submissions" dated May 2012.

Company Y headed the consortium that was ultimately successful in the relevant tender competition.

In its decision dated 20 January 2014, which was affirmed on internal review, the Council refused the request under sections 26(1)(a), (b), and 27(1)(c) on the basis that the records concerned were confidential and commercially sensitive. On 24 February 2014, the applicant applied to this Office for a review of the Council's decision.

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant, the Council, and the affected third party, Company Y. I have also examined the records concerned. 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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.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 clarified that the scope of the request is limited to information relating to the successful tenderer, i.e. the submission made by Company Y and its associates, and that the request does not include any information "pertaining to the pricing strategy, goods or services, banking, financial, or insurance details of Company Y, or at least to the extent that such information would not otherwise be available through public record or freely available published information". The applicant also agreed to exclude from the scope of the review the personal information contained in the records regarding the project teams and staff members involved. Accordingly, this review is concerned solely with the question of whether the Council was justified in refusing access to the records requested insofar as they relate to the Prequalification Submission of Company Y and its associates, apart from the details that the applicant has agreed to exclude (any confidential information relating to the pricing strategy, goods or services, banking, financial, or insurance details of Company Y, as well as the personal information regarding the project teams and staff members involved).

Analysis and Findings

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 under section 34 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Relevant Exemption Provisions
Both the Council and Company Y claim that the records at issue in this case contain confidential and commercially sensitive information. Therefore, the relevant exemptions provisions to consider are sections 26 and 27 of the FOI Act.

Section 26(1) states that "Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-
(a) the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or (b) 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".

The confidentiality exemption generally 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, "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" (section 26(2) refers). In addition, section 26(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 26(3) refers).

Section 27 of the FOI Act provides protection for three different classes of commercially sensitive information as follows:

"27.-(1) Subject to subsection (2), 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) does not apply, however, if the public interest would, on balance, be better served by granting rather than by refusing the request (section 27(3) refers).

Submissions
In a submission dated 3 April 2014, the Council argued that it was required under the relevant public sector procurement Directive (Directive 2004/18/EC) to preserve the confidentiality of the information contained in the Prequalification Submission relating to the technical, legal and financial capacity of Company Y. The Council explained that, under the Directive, "a contracting authority is obliged not to disclose information forwarded to it by economic operators which has been designated as confidential - such information includes, in particular, technical or trade secrets and the confidential aspects of tenders". The Council also referred to the Public Procurement Guidelines, which provide that proposals in a tendering process are normally submitted on a confidential basis. The Council emphasised that in Case 080284, ABC Ltd & Roscommon County Council (12 August 2010), this Office accepted that knowledge by competitors of the company's financial statements, banking details and insurance policies could possibly prejudice the position of the successful tenderer and was therefore exempt under section 27 of the FOI Act. The Council also emphasised that the Prequalification Submission contains information concerning Company Y and its capabilities and standing rather than information concerning the nature of the works being undertaken or the price being paid for those works.

However, as noted above, the applicant clarified during the course of the review that the request does not include any confidential information relating to the pricing strategy, goods or services, banking, financial, or insurance details of Company Y. The applicant noted that the Council had taken what appeared to be a blanket approach to the information requested and that it was not possible to discern based on the available information whether the successful tenderer was even assessed at prequalification stage. The applicant suggested that, as the tender competition had concluded, that the Council may be willing to reconsider it position in the circumstances.

This Office therefore contacted the Council to ascertain whether it was willing to reconsider its position having regard to the narrowed scope of the applicant's request, the passage of time, and the conclusion of the relevant tender competition. In its reply, the Council acknowledged that the Prequalification Submission does not contain any information in relation to Company Y's pricing strategy, but it maintained that the Submission "contains Company Y's confidential banking, financial and insurance details and information that is not available through public record or freely available published information".

Subsequently, by letter dated 16 December 2014, this Office contacted Company Y to notify the company of the review and to give it an opportunity to make submissions. In the notification letter, it was explained that any confidential information relating to the banking, financial and insurance details of Company Y no longer formed part of the review and that the Council had not explained how Company Y's Submission otherwise met the criteria for exemption under the FOI Act. Company Y made the following reply: "We submitted the information to Cavan County Council for the purpose of the competition including commercially sensitive information that is generally not available to our competitors."

Conclusions

As is generally the case with tender-related records, the claims of confidentiality that have been made by the Council and Company Y are closely connected to claims of commercial sensitivity. In other words, the argument is in essence that the records are confidential and thus entitled to protection under section 26, because they contain commercially sensitive information that is also entitled to protection under section 27. However, it is well settled that tender-related records are not exempt under section 26 or section 27 as a class.

Based on the submissions of the Council and Company Y, I accept that the Prequalification Submission was given to the Council in confidence and on the understanding that it would be treated by the Council as confidential. I am therefore satisfied that the first two requirements of section 26(1)(a) have been met.

However, in relation to the third requirement of section 26(1)(a), I note that the Submission was made for the purpose of establishing Company Y's suitability for selection for the waste water treatment upgrade works. It is not a tender; its focus is on showing that Company Y met the selection requirements for participation in the project, not on pricing or how it proposed to carry out the works. The Submission was successful and, following the tender competition, Company Y was ultimately awarded the contract.

Neither the Council nor Company Y has specifically identified any item of information in the Prequalification Submission or the assessment report on the Submission remaining at issue that is regarded as commercially or otherwise sensitive. The Council made reference to "technical or trade secrets" in its submission dated 3 April 2014, but it has not been shown that any technical or trade secrets are contained in the records at issue. The confidential banking, financial and insurance details that have been highlighted as a concern to the Council are now excluded from the scope of the request and thus of this review. Moreover, from my examination of the records, it is not apparent to me that any such details were at issue in the first instance, since the Suitability Assessment Questionnaire simply required confirmation by declaration that certain specified requirements had been met, such as a minimum level of Professional Indemnity Insurance cover. The economic and financial criteria also appear to have been met by declaration. In the circumstances, I find no basis for concluding that disclosure would be likely to prejudice the giving to the Council of further similar information from Company Y or other persons in future. I am therefore not satisfied that the third requirement of section 26(1)(a) has been met.

Moreover, I do not accept that either Directive 2004/18/EC or the Public Procurement Guidelines provide for a duty of confidence with respect to either the Prequalification Submission or the Council's assessment of the Submission. As noted, the Submission is not a tender, and I do not see that any specific information remaining at issue has been designated as confidential. No other basis for finding that a duty of confidence exists has been identified. I am therefore not satisfied that either section 26(1)(a) or section 26(1)(b) applies. For the sake of completeness, I note that, as it has not been shown that disclosure would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law, the Council's assessment report also does not qualify for exemption under section 26(1) by virtue of section 26(2).

Insofar as the Council and/or Company Y may be arguing that any information contained in the records at issue is commercially sensitive, I note that no effort has been made to explain how or why any harm of a commercial nature could arise from disclosure. As noted, no trade secrets have been identified. It has not been shown that disclosure could reasonably be expected to result in a material loss or gain to Company Y and its consortium or could prejudice its competitive position. It has also not been shown that disclosure could prejudice the conduct or outcome of any contractual or other negotiations, especially since the related tender competition is now over. I conclude that section 27(1) also does not apply.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Council and direct the release of the records concerned insofar they relate to the Prequalification Submission of Company Y Ltd and its associates, apart from the details that the applicant has agreed to exclude (any confidential information relating to the pricing strategy, goods or services, banking, financial, or insurance details of Company Y, as well as the personal information regarding the project teams and staff members involved).

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 after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator