Whether the Council was justified in deciding to refuse access to records relating to a successful tenderer (the third party) on the ground that the records are exempt under section 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

On 23 May 2014 the applicant made an FOI request to the Council for the copy of a contract submission by the third party for a weed control contract with the Council. By letter dated 20 June 2014, the Council granted partial access to the records and refused access to the remaining records on the ground that they contain personal information and/or are commercially sensitive under section 27 of the FOI Act. On 22 June 2014, the applicant applied for an internal review of the decision in respect of the following records: 8; 15 - 17; 18 - 19; 74 - 97; 111 - 116; and 118 - 123. The Council had refused access to these records on the basis that their release "could reasonably be expected to prejudice the competitive position of (the third party) in the conduct of its business". The Council issued an internal review decision by letter dated 12 August 2014, in which it affirmed its original decision. On 18 August 2014 the applicant applied to this Office for a review of the Council's decision.
In conducting my review, I have had regard to the Council's decision on the matter; the Council's communications with the applicant, the third party and with this Office; the applicant's communications with the Council and with this Office; the third party's communications with the Council and with this Office; the content of the withheld records, provided to this Office by the Council 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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Preliminary Matters

Unfortunately, there was a considerable delay before the review was assigned to an investigator in this Office, due to a backlog of cases on hands and the limited resources available. I am glad to say that both of these issues have now been addressed.
I would also like to make the following points. First, while I am required to give reasons for my decision under section 34(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 43. Secondly, section 13 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. However, the Commissioner takes the view that neither the definition of a record under section 2 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 13 shall not apply if the copy of the record provided would be misleading.

Analysis and Findings

Section 27
As noted above, the records which the applicant seeks consist of a contract submission by the third party, who successfully tendered for a weed control contract with the Council. The Council refused access to these records as, in its view, they are commercially sensitive records whose release "could reasonably be expected to prejudice the competitive position of (the third party) in the conduct of its business" (this language is similar to the language found in section 27(1)(b) of the FOI Act).
Section 27 of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of commercially sensitive information.
Specifically, section 27(1)(b) 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".

In Cases No. 9849, 9856 and 9857 (Henry Ford & Sons Ltd and Ors and Office of Public Works), the former Commissioner held that:

"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 standard of proof in relation to the second limb of section 27(1)(b) is not a particularly onerous one. All that is required is the possibility of prejudice. In the Henry Ford case cited above, the former Commissioner set out his view on the standard of proof needed:

"However, I am conscious that the only requirement which has to be met in this case is that disclosure "could prejudice the competitive position" of the person concerned. In my view the standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "might reasonably be expected to"."

I have examined submissions received from the Council and the third party. The Council submits that sections of the records contain information about the methodology to be used to deliver the contract and that their release could reasonably be expected to prejudice the position of the third party in the conduct of its business. It further submits that release of the records would give an advantage to competitors and disadvantage the third party. The third party submit that the records contain information which is of commercial interest to their competitors, specifically: the understanding and subsequent delivery of the contract; methods of weed control which have been developed over time at significant cost (in money and time) to them; systems that were developed at significant cost and time to them.
Having considered the submissions of the Council and the third party and having examined the records at issue, I am satisfied that section 27(1)(b) applies to records 15 - 19, 74 - 97, 111 - 116, 118 and part of 119. Records 15 - 19, 118 and part of 119 (up until the words "Greentown Environmental's Qualifications & Accreditations") contain details of the third party's clients and contracts performed for them by the third party. Records 74 - 97 and 111 - 116 contain the third party's methodology of delivery of the weeding contract. In particular, they include specifications of the equipment which the third party proposed to use; the third party's analysis of what the weed control contract required; and the means by which the third party proposed to meet the requirements, including innovations in relation to the delivery of the contract. I do not believe that the information contained in these records would otherwise be available to the public and I accept that its release could have negative commercial consequences for the third party, thereby prejudicing its competitive position.

Section 27(2) provides for the release of information to which section 27(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 27(2) arises in this case.

Having found that section 27(1)(b) applies, section 27(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. I will consider two points in this regard. First, in his application for a review, the applicant informed this Office of his reasons for seeking the records. While section 8(4) of the FOI Act requires me to disregard the applicant's reasons for the request, this is subject to the provisions of the FOI Act so that I may take them into account to the extent that they are potential public interest factors in favour of release. In weighing up the public interest, I have had regard to the Supreme Court judgment in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26, which distinguishes between private and public interests. In my view, the applicant's interest in obtaining the information is inherently a private interest. Secondly, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. However, set against that, there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without suffering commercially as a result. In the circumstances of this case, I conclude that, on balance, the public interest would not be better served by the release of the information to which section 27(1)(b) applies to the extent that overriding the commercial sensitivity of that information would be justified.

I do not consider that section 27 applies to records 8 or 119 (from the words "Greentown Environmental's Qualifications & Accreditations" onwards) - 123. Record 8 is a generic form which contains a series of self-declarations in relation to turnover in excess of a specified amount, profitability and the holding of a bank account. The Council has advised this Office that all tenderers were required to complete all of the self-declarations contained in this document. Record 119 (from the words "Greentown Environmental's Qualifications & Accreditations" onwards) and records 120 - 123 contain information on accreditations of the third party which is available on its website (apart from the paragraph in record 121 which contains a name, member number, registration number and expiry date).

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Council by affirming their decision in relation to the following records: 15 - 19, 74 - 97, 111 - 116, 118 and part of 119 (up until the words "Greentown Environmental's Qualifications & Accreditations") and by directing the release of the following records: 8, 119 (from the words "Greentown Environmental's Qualifications & Accreditations" onwards) and 120 - 123 (apart from the paragraph in record 121 which contains a name, member number, registration number and expiry date).

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.

Elizabeth Dolan
Senior Investigator