Whether the Department was justified in its decision to grant a request, to which section 29 of the FOI Act applies, for access to tender documents in relation to the provision of pharmacy services and supplies to the Irish Prison Service (the IPS)

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
This review arises from a decision made by the Department to release records following an FOI request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to cases where the public body has considered at some stage in the decision making process that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that the record(s) should be released in the public interest. Where section 29 applies, the public body is required to notify the affected third parties before making a final decision on whether or not the exemption(s) considered to apply should be overridden in the public interest. The requester or affected third parties, on receiving notice of the final decision of the public body, may apply for a review of that decision to the Office of the Information Commissioner directly.

In January 2014 the IPS published a request for tenders in relation to the provision of pharmacy services and supplies to three prison locations (Lots 1-3). On 8 August 2014, the original requester sought a copy of tender response documents that the applicant submitted to the Department in respect of Lots 1 and 2. The applicant was the successful tenderer in respect of both Lots. The Department informed this Office that the documents submitted by the applicant in relation to Lots 1 and 2 were identical and it has, therefore, referred to just one set of records in its submissions. For ease of reference I shall refer to the records in the same way.

The Department's decision maker identified 20 records as coming within the scope of the request and, as she was of the view that the public interest would be better served by granting than by refusing access to the records, she notified the applicant of his right to make a submission if he did not want the records to be released. The applicant subsequently made a submission identifying the information he believed should not be released, including information he considered to be commercially sensitive.

Subsequently, on 16 October 2014, the Department informed the applicant that it had decided "to release the information" in the public interest. While the Department did not specify which records it intended to release in its letter to the applicant, it is now clear that the Department's decision was to part grant the request by releasing four records (A13, A15, A18 and A19) in full, and one (A20) in part. On 28 October 2014, the applicant applied to this Office for a review of the Department's decision.

During the course of the review, the applicant informed Ms Sandra Murdiff, Investigating Officer in this Office, that he had spoken with the Department about the records in question and was very clear which documents were at issue. He indicated that he did not wish the records to be released. Accordingly, I have decided to conclude this review by way of a formal binding decision.

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.
In conducting this review, I have had regard to the submissions of the Department and of the applicant. I have also had regard to the provisions of the FOI Act and to the contents of the records in question, copies of which were provided to this Office for the purposes of this review.

Scope of Review

The scope of this review is concerned solely with the question of whether the Department was justified in its decision to grant access to five records (one in part) that were submitted by the applicant to the IPS in response to the request for tender for the provision of pharmacy services and supplies.

Preliminary Matters

It is important to note that, as set out at section 34(12)(a) of the FOI Act, where a decision to grant a request to which section 29 applies is being reviewed by the Commissioner, there is a presumption that the granting of the requested access is justified unless the person (to whom the information relates) shows to the satisfaction of the Commissioner that the decision was not justified. Thus, in this case, the onus is on the applicant to satisfy this Office that the decision to grant access to the relevant records was not justified.

Analysis and Findings

Section 27(1)(b) of the FOI Act provides that a head shall refuse to grant a request for records if the records in question contain 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 records at issue in this case are documents submitted by the applicant in response to a request for tenders request and comprise a Tenderer's Statement (A13), a Declaration of Personal Circumstances of Tenderer (A15), a Pharmacy Registration Certificate (A18), a Tax Clearance Certificate (A19) and Costs Templates (A20) with pricing information relating to Lots 1 and 2.

In previous decisions, this Office has explained its approach to interpreting the words "could...reasonably be expected to...." in the context of section 27 of the FOI Act. In determining whether access "could reasonably be expected to affect adversely" one of the interests outlined in section 27(1), this Office takes the view that there must be adequate grounds for any such expectation at the time the decision to refuse access is made. The mere possibility of some adverse effect is not sufficient. This Office has also found that a relatively low threshold applies in determining whether information is commercially sensitive on the basis of prejudice to a company's competitive position. The test is not whether harm is certain to materialise, but whether it might do so.

Record A13 is essentially a statement by the tenderer that it meets the relevant criteria and requirements as set out in the Request for Tenders. Record A15 comprises a declaration that the tenderer is not excluded from participation in the tender on certain specified grounds. Record A18 comprises a certificate that the tenderer has been registered in the Register of Retail Pharmacy Businesses. Record A19 comprises a copy of the tenderer's tax clearance certificate. Record A20 comprises a Costs Template as completed by the applicant and it contains details of the annual cost of medications (gross and net of discount), the annual management fee, and the total overall cost for each Lot. The Department decided to grant access to the total cost figure only.

Records A13, A15, A18 and A19
These four records contain details of the name of the company or the name of the applicant. The applicant has made a detailed submission to this Office in which he argues that the release of the identity of the company as successful tenderer and the release of the total overall cost for each Lot could give rise to certain harms. Given the nature of the harms identified, I do not propose to repeat them here. However, regardless of the applicant's concerns, the fact remains that the IPS has published the name of the company as the successful tenderer on the www.etenders.gov.ie website.

That site is designed to be a central facility for all public sector contracting authorities to advertise procurement opportunities and award notices. Furthermore, the applicant has made no argument that the release of the remaining information in these records might give rise to any specific harms. Accordingly, I see no basis for considering that the release of the records at issue could give rise to any of the harms set out in section 27. I find, therefore that section 27(1) does not apply to Records A13, A18 or A19.

I note, however, that Record A15 contains the applicant's name and what appears to be his home address. In the particular circumstances of this case, I find that this information is exempt from release under section 28(1) of the FOI Act as it comprises the applicant's personal information.

Record A20

The award notice as published on www.etenders.gov.ie also contains details of the lowest and highest offers received. Clearly, the total cost figure as set out in Record A20 comes within this range. While the specific total cost figure has not been published, it appears that the argument that its disclosure could prejudice the competitive position of the successful tenderer is significantly weaker in view of the fact that the range of offers received has been published. Nevertheless, as I have outlined above, a relatively low threshold applies in determining whether information is commercially sensitive on the basis of prejudice to a company's competitive position. Accordingly, I find that section 27(1)(b) applies.

However, that is not the end of the matter as section 27(3) provides that the exemptions contained in section 27(1) do not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.

On the matter of where the balance of the public interest lies in this case, I note that there is a strong public interest in optimising transparency and accountability in relation to the utilisation of public funds. Indeed, the applicant accepts that there is a need for transparency with all government contracts. Given the value of the contracts at issue in this case, it seems to me that the public interest in ensuring transparency and accountability is significant. On the other hand the public interest in ensuring that the competitive position of the successful tenderer is not prejudiced does not, in my view, carry significant weight in circumstances where the range of offers received has already been published. It is already public knowledge that the successful tenderer's offer was at least equal to the lowest offer submitted.

Accordingly, I am satisfied that the public interest would, on balance, be better served by the release of the total cost figure contained in Record A20.

For the sake of completeness I should add that some of the arguments made by the applicant in correspondence with this Office relate more to other discretionary exemptions contained in the FOI Act. As the Department did not seek to apply such exemptions, it is not open to me to consider them. Nevertheless, it seems to me that the applicant's concerns relate more to the potential harms that might arise by the disclosure of the fact that the company was involved in the contracts concerned. Given that this information is already in the public domain, I fail to see how the disclosure of the records at issue could be considered to give rise to the harms identified.

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 Department. I affirm the decision of the Department to release Records A13, A18 and A19 in full and Record A20 in part. I direct the release of Record A15 subject to the redaction of the applicant's name and address.

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