Case Number: 160279

Whether the Council was justified in its decision to refuse access to records relating to a tender competition to establish a multi-supplier framework for energy retrofitting works

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 26 April 2016, the Council received a request from the applicant for certain records relating to a tender competition to establish a multi-supplier framework for energy retrofitting works. On 25 May 2016, the Council refused the request on the basis that the competition to establish the framework had been cancelled prior to establishment and a new competition would shortly be advertised on the eTenders website. It made no reference to any relevant exemptions. The applicant sought an internal review of that decision and on 21 June 2016, the Council affirmed its original decision to refuse the request. The applicant sought a review by this Office of the Council's decision on 28 June 2016.

In conducting this review I have had regard to the correspondence between the applicant and the Council, and to correspondence between this Office and both the applicant and the Council on the matter.

Scope of the Review

This review is concerned solely with whether the Council was justified in its decision to refuse the applicant's request for certain records relating to the tender competition in question.

Analysis and Findings

It is important to note at the outset that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Council of satisfying this Office that its decision to refuse to release the records sought was justified.

As I have indicated above, the Council did not rely on any section of the FOI Act as a ground for refusing the applicant's request. Rather, it refused the request solely on the basis that the tender competition had been cancelled and that a new competition would be advertised shortly. The FOI Act provides for a right of access to all records held by an FOI body, unless they are otherwise exempt. For the purposes of the Act, exempt records are defined as records in relation to which the grant of a request would be refused pursuant to Part 4 or by virtue of Part 5 of the Act.

Essentially, where a body wishes to refuse access to a record it holds, it must identify a relevant exemption or exception as provided for in the FOI Act. Under the Act, it must notify the requester of the reasons for the refusal, the provisions of the Act under which the request has been refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision (section 13(2) refers). Given that the Council has been subject to the provisions of FOI legislation since 1998, I would expect it to be fully aware of its obligations under the FOI Act.

During the course of the review, a Council official stated in a telephone conversation with this Office that there were several boxes of relevant records and that the decision to refuse the request had been taken without the records having been examined. In a subsequent submission to this Office dated 5 August 2016, the Council stated that it received 74 tenders in respect of the competition in question and that the associated documentation runs to over 5,000 pages. It stated that it was now of the view that the request should have been more correctly refused on the basis that the documentation was commercially sensitive.

Section 36 of the FOI Act provides for the protection of commercially sensitive information. Section 36(1)(b), which is likely to be of most relevance, provides for the refusal of a record 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. As a harm based exemption, the FOI body must consider the contents of each record and determine the likelihood of either of the harms set out in the section arising. It is also subject to certain exceptions (section 36(2)) and to a public interest balancing test (section 36(3)).

As such, it is not appropriate that the Council would, at this stage, seek to apply a blanket exemption to all records coming within the scope of the request under section 36(1). It seems to me that the Council has not undertaken any specific consideration of the content of the individual records. It also appears that the Council has concerns as to the amount of resources that would be required to properly consider all of the records coming within the scope of the request. If this is the case, then it was open to the Council to consider whether section 15(1)(c) might provide an appropriate ground for refusing the request. That section provides for the refusal of a request where the body considers that granting the request would, by reason of the number or nature of the records concerned require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work of the body. However, it is important to note that before refusing a request under that section, the body must first assist or offer to assist the requester to amend the request for re-submission so that it no longer falls within the provisions of section 15(1)(c) (section 15(4) refers).

In light of the manner in which the Council processed the request, I find that it has not justified its decision to refuse the request. However, given the nature of the records at issue and given that release of the records would clearly involve the disclosure of information relating to a large number of third parties, I do not consider it appropriate to direct the release of the records. Instead, I consider that the appropriate course of action is to annul the Council's decision and to direct it to make a new first instance decision in respect of the applicant's original request.

 

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby annul the decision of the Council in this case. I direct the Council to undertake a fresh decision-making process in respect of the request, as set out above, and to inform the applicant of the outcome of its decision, in accordance with section 13 of the FOI Act.

 

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator