Case Number: 160471

Whether the OPW was justified in its decision to refuse access to records relating to a tender process for the concession of the Brú na Bóinne tea-rooms, on the ground that the records are exempt under sections 36 and 37 of the FOI Act

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

Background

By email dated 28 January 2016, the applicant made an FOI request for "all relevant documentation used in awarding the score in the tender for the concession for the tea rooms at Brú na Bóinne Visitor Centre", to include certain specified information. By letter dated 15 March 2016, the OPW granted partial access to the records and refused access to the remaining information on the ground that it was exempt under sections 36 and 37 of the FOI Act. On 8 April 2016, the applicant applied for an internal review of the decision in respect of the withheld records. The OPW issued an internal review decision by letter dated 4 May 2016, in which it affirmed its original decision. On 26 October 2016 the applicant applied to this Office for a review of the OPW's decision.

In conducting my review, I have had regard to the OPW's decision on the matter; the OPW's communications with the applicant and with this Office; the applicant's communications with the OPW and with this Office; the submissions of a third party tenderer; the content of the withheld records, provided to this Office by the OPW for the purposes of this review; and the provisions of the FOI Act.

Scope of this Review

The question for me is whether the OPW was justified in refusing access to the records under sections 36 or 37 of the FOI Act.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the OPW to satisfy me that its decision is justified.

Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. 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 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]".

Thirdly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request.

Finally, I note that neither the OPW decision or internal review decision complied with section 13(2)(d) of the FOI Act. In particular, the applicant was not given any particulars relating to consideration of the public interest.

Analysis and Findings

Section 36(1) - Commercial Sensitivity

The OPW claims section 36(1) in respect of the records. Section 36(1) provides:

"Subject to subsection (2), a head shall refuse to grant an FOI request 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."
However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

Submissions

The OPW submits that releasing the information could damage the financial interest/competitive position of the companies involved and lead to the inappropriate release of trade secrets.

A third party tenderer says that information contained in their tenders to the OPW relates to (among other things) the financial position of their business; funding models; operational methodologies; staffing proposals; menus and proprietary recipes. They say that disclosing such information will result in material financial loss for their business and/or could prejudice the competitive position of their business.

The applicant says that he does not consider that the information requested can in any way damage the financial interest or competitiveness of the company involved. Furthermore, he says that he believes that the OPW erred in the conduct of the tender process and says "we require more detail from the tender submitted by [company name] to enable us to submit our full appeal". As mentioned above, subject to the provisions of the FOI Act, I must disregard the reasons for the applicant's request. I can therefore only consider the applicant's second point insofar as it might relate to the public interest, which I assess below.

Analysis & Findings

Having regard to the content of the records and the parties' submissions, I believe that the most relevant part of section 36 to consider is section 36(1)(b). The essence of the test in this section is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision-maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b).

The withheld information consists of: (a) two tender proposals and (b) details of the tenderers' fee proposals and financial turnover, as redacted from two tender score matrices. The OPW released the rest of the tender score matrices in its original decision. The tender proposals include the following: detailed information about the tenderers' businesses; their understanding of the OPW's needs in this particular tender; their methodologies for addressing those needs; staff costs; supplier feedback; proposed menus; pricing; and fee proposals. I consider that competitors could use this information to their advantage, thereby prejudicing the tenderers' competitive positions. I therefore find that section 36(1)(b) applies to the records.
Section 36(2)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.

Section 36(3)

Section 36(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 FOI request.

Section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result.

On the other hand, the FOI Act recognises, both in its long title and in its individual provisions that there is a significant public interest in government being open and accountable. Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters. These include: the need to achieve greater openness in their activities and to promote adherence to the principles of transparency in government and public affairs; the need to strengthen their accountability; and the need to improve the quality of their decision-making. I consider this to be a public interest which equates with "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law " as referred to by Macken J. in Rotunda Hospital v Information Commissioner [2011] IESC 29.

I take the approach that in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider two things: the positive public interest which is served by disclosure; and the harm that might be caused by disclosure.

In relation to the positive public interest which would be served by disclosure, I make the following observations. First, I consider that there is a public interest in openness and accountability around the use of public funds. However, during this review, the OPW clarified that the tender process to which the records relate did not conclude in a final agreement and that this particular concession is to be re-tendered. Therefore, the records concerned do not involve a party being paid public funds following this particular tender process. Secondly, I consider that there is a public interest in openness and accountability around the manner in which FOI bodies assess and score tender applications. As noted above, the OPW granted the applicant access to copies of the tender matrices (having redacted the companies' financial turnover and fee proposals). The information released discloses the various criteria which were applied and scores which were granted to each tenderer. I believe that this public interest has thereby been met to a considerable extent. Thirdly, insofar as the applicant has an interest in appealing the tender process, I believe that this is more properly viewed as a private rather than a public interest. I therefore do not consider that this is a factor which I am required to weigh in the balance.

In relation to the harm which might be caused by disclosure, I have already identified the potential prejudice to the tenderers' competitive positions. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny; this is all the more relevant in a case which did not conclude in a successful tender.

In the circumstances and on balance, I find that the public interest would not be better served by granting access to the withheld information and therefore section 36(3) does not disapply section 36(1). Having regard to the above, I find that the OPW is justified in refusing access to the records under section 36(1)(b) of the FOI Act. In view of this finding, I am not required to consider whether the records are exempt under section 37 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I find that the OPW is justified in refusing access to the records under section 36(1)(b) 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.

Elizabeth Dolan
Senior Investigator