Decision
Mr X and Department of Environment, Climate and Communications
From Office of the Information Commissioner (OIC)
Case number: OIC-143300-C2K8M8
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URL: http://www.bailii.org/ie/cases/IEIC/2024/143300.html
Cite as: [2024] IEIC 143300
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Whether the Department was justified in refusing access to records relating to its decision on a specified tender
5 December 2024
The applicant is an employee of a company which submitted an unsuccessful tender to the
Department. The applicant, on behalf of his company, is represented by a solicitor in this matter and therefore all references to the applicant in this decision should be taken to include correspondence with the company's solicitor.
In a request dated 10 February 2023, the applicant sought access to a number of records relating to the Department's decision on his company's bid; its decision on the bid of the successful tenderer, and the tender documents submitted by the successful tenderer; internal Department correspondence related to the tender process; correspondence between the Department and the tenderer in relation to the tender, between 1 January 2022 and 10 January 2023; and correspondence between the Department and two named individuals regarding the tender process between the same dates.
On 32 March 2023, the Department part-granted the applicant's request, releasing 46 records in full and 86 in part, and withholding in full 59 records, citing sections 31(1), 35(1), 36(1) and 37(1) of the FOI Act as grounds for its decision. On 26 April 2023, the applicant sought an internal review of the Department's decision. In its internal review decision of 19 May 2023, the Department affirmed its original decision, and cited an additional provision of the FOI Act, namely section 29(1), as a basis to withhold one record (although the Department later released this record in full). On 23 October 2023, the applicant applied to this Office for a review of the Department's decision.
In correspondence with the applicant, he argued additional records ought to exist and to have been considered for release. I put this to the Department, and its subsequent response amounted, in my view, to a refusal of this aspect of the request under section 15(1)(a). I put this to the applicant, and invited him to make further submissions. He subsequently confirmed that he did not wish to do so. I also formed the opinion that the interests of two third parties - the successful tenderer and a legal firm (not the applicant's current solicitor) - were potentially affected by the release of the records. I contacted both to afford them the opportunity to make submissions. Neither party did so.
Furthermore, when the Department provided this Office with copies of the relevant records, it included some additional records that were not scheduled. I queried this and the Department stated that it had identified six additional records. It sought to withhold one of these (an internal Department email of 5 December 2022, sent at 18:53) under section 36(1)(b), and to partly-withhold another (a thread of emails of 14 November 2022 between the Department and a contractor) under section 37(1). For the purposes of this review I will refer to these records as additional records 1 and 2, respectively. Of the remaining four additional records, the Department indicated that it would release one, while one had already been released and two were duplicates of withheld records.
In its decision, the Department issued a three-part schedule of records. For the ease of reference of all parties, in this review I will refer to the records by schedule part and number, for example "Part A, record 1", and so on.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by both parties, the correspondence exchanged between the parties, and the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Department was entitled, under sections 15(1)(a), 31(1)(a), 35(1)(a), 36(1)(b) and 37(1) of the FOI Act, to refuse in part the applicant's FOI request.
The records to which the Department refused access in full are as follows:
-’ Part A, records 2 and 3 - appendices to the application submitted by the successful tenderer
-’ Part A, records 6-14 - curricula vitae of individuals
-’ Part A, records 25, 27 and 3-45 - internal Department emails of 23-30 November 2022
-’ Part B, record 33 - internal Department email of 20 December 2022
-’ Part B, records 56-63 - letters of confidence in respect of various tenderers
-’ Part B, record 51 - letter of 14 November 2022 to an unsuccessful tenderer
-’ Part B, records 54-55, 64-68, 70, 72 and 74-75 - documents related to the financial standing of tenderers
-’ Part C, records 5-6 and 29-39 - internal Department emails of 23 November 2022-12 December 2022
-’ Part C, record 48 - Tender Evaluation Report of 8 November 2022.
The records to which the Department refused access in part are as follows:
-’ Part A, records 5, 18 and 20 - letters of reference for individuals
-’ Part A, records 23-24, 26, 30, 32-33, 35-39, 42, 46-48, 50-51, 54, and 58-59 -Department emails of 18 November 2022-17 January 2023 to external parties
-’ Part B, records 1-10, 12-20, 22-23, 25, 29-32, 36-37, 39 and 41-45 - Department emails of 23 November 2022-24 February 2023 to external parties
-’ Part B, records 46-47 - letters of reference/recommendation for individuals
-’ Part B, record 48 - letter of 14 November 2022 to the successful tenderer
-’ Part B, records 49-50 and 52-53 - letters of 14 November 2022 to unsuccessful tenderers
-’ Part B, record 77-82 - letters of 30 November 2022 to third parties
-’ Part C, records 1-4, 10-11, 13, 15, 18-22, 24-25, 27-28, and 40-43 - Department emails of 11 November 2022-12 January 2023 to external parties
-’ Part C, records 9, 14 and 23 - internal Department emails of 23 November 2022 and 30 November 2022
-’ Part C, record 47 - Tender Evaluation Spreadsheet of 7 November 2022.
The Department relied on section 31(1)(a) to withhold in full Part A, records 25, 27 and 43-45; Part B, record 33; and Part C, records 5, 6, and 29-39; and Part C, records 9, 14 and 23 in part. Section 31(1)(a) provides that an FOI body shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). I am also satisfied that Part B, record 37 should be considered under section 31(1)(a), albeit the Department did cite it in relation to the record.
There are two types of LPP, and I am satisfied that one (litigation privilege) is not relevant to this case. The other kind of LPP, at issue here, is legal advice privilege, which applies to confidential communications made between a client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, where the legal adviser is acting in a professional capacity. Furthermore, legal advice privilege may also attach to records which may not, on an individual basis, satisfy the above criteria but which form part of a series of communications made for the purpose of giving or receiving legal advice. This Office takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
In its submissions, the Department stated that the relevant records either contained legal advice, referenced legal advice that it had received, or related to a legal review of queries about the tender process. I have examined the records in respect of which the Department cited section 31(1)(a), and I accept that some of the records either show the Department seeking and/or receiving legal advice from its legal advisor acting in his professional capacity, or form part of a continuum of communications for this purpose. This finding applies to Part A, records 25, 27, 43, 44, 45; and Part B, records 33 and 37; and Part C, records 29-33, and 35-39. These records are accordingly exempt under section 31(1)(a).
However, I am not satisfied that Part C, records 5, 6 and 14 meet the criteria for legal advice privilege. These records show Department staff discussing the contents of a draft letter, but it is not clear to me that any of the comments expressed in the discussion are made by, or on foot of the advice of, the Department's legal advisor. Nor is it clear to me that the discussion is part of a continuum of correspondence originating from a request for legal advice. Moreover, the emails comprising Part C, record 9 appear to merely demonstrate the Department deciding to seek legal advice, and do not contain a request for legal advice or reveal the content of any such advice. Similarly, Part C, record 23 indicates that the Department has decided to seek legal advice, but does not contain a request for legal advice or reveal the content of any such advice. In the case of Part C, record 34, I do not consider that the information in the record - which simply notes that, following legal advice, a decision has been made on the tender, and gives a chronology of the tender competition - is privileged.
Accordingly, Part A, records 25, 27, 43, 44, 45; Part B; record 33; and Part C, records 29-33 and 35-39 are exempt from release under section 31(1)(a). I am therefore not required to examine the extent to which the other exemptions cited by the Department might apply to these records. However, Part C, records 5, 6, 9, 14, 23 and 34 are not so exempt.
Section 36(1)(b)
The Department cited section 36(1)(b) to withhold access in full to Part A record 3; Part B records 51, 54-55, 64-68, 70, 72 and 74-75; Part C records 5-6 and 48; and additional record 1. Furthermore, the Department cited section 36(1)(b) as a basis to withhold access in part to Part A, records 2, 5, 18, 20, 23-24, 26, 28, 30, 32-33, 35-39, 42, 47-48, 50-51, 54 and 58-59; Part B records 1-5, 7-10, 12-20, 22-23, 25, 29-32, 36-37, 39, 41-48, 50, 52-53, and 77-82; and Part C records 1-4, 9-11, 13-15, 18-25, 27-28, 40-43 and 47. I am also satisfied that Part B, record 6 should be considered under section 36(1)(b), albeit the Department did not withhold the latter record under this exemption.
Section 36(1)(b) provides for the refusal of access to a record where it contains 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. It should be noted that the essence of the test in section 36(1)(b) 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 the exemption is whether disclosure of the information "could reasonably be expected to result in material financial loss or gain" and is concerned, not with probabilities or possibilities, but the reasonableness of an FOI body's expectation. The body should outline the nature of the harm envisaged and a basis for a claim that the harm could reasonably be expected to flow from disclosure of the relevant information.
The second harm test in section 36(1)(b) is whether disclosure of the information "could prejudice the competitive position" of a person in the conduct of his/her profession or business or otherwise in his/her occupation. While this is a considerably lower standard of proof than in the first harm test, in invoking the phrase "prejudice" the damage which could result from disclosing the information must be specified with a reasonable degree of clarity.
In its submissions, the Department argued that section 36(1)(b) applied to the above records on the basis that they contained commercially sensitive information regarding pricing and financial, insurance and contractual matters. In the applicant's submissions, he argued that it was not clear how certain records at issue could contain commercially sensitive information and, to the extent that they did, this did not warrant withholding entire records when the relevant material could be redacted. The applicant referenced the case of University College Cork v the Information Commissioner [2020] IESC 57 [58]) ("the UCC case"), in which the Supreme Court had held that, while public bodies are entitled to withhold commercially sensitive or confidential information pursuant to an FOI request, the decision must be adequately justified. He argued that no adequate justification had been given by the Department, stating that no explanation had been provided as to how disclosure would result in either harm provided for in section 36(1) (b). The applicant also noted that the Request For Tender (RFT) had required tenderers to identify commercially sensitive information in their tender and argued that, in the absence of such identification, the information was subject to release. Moreover, he referenced section 36(2)(a) of the FOI Act, to which section 36(1) is subject, which provides that an FOI body shall grant an FOI request to which section 36(1) relates if the person to whom the record relate consents to its release. The applicant argued that, in the absence of evidence that the records withheld under section 36(1)(b) had been identified by the successful tenderer as commercially sensitive, this implied consent on the part of the successful tenderer, for the purposes of section 36(2)(a), to the release of the records.
I have considered the arguments of the parties and examined the records at issue. I am also cognisant of a previous decision of this Office (OIC-98188), the relevant findings of the then-Commissioner in which can be summarised as follows:
1. FOI bodies are obliged to treat all tenders as confidential at least until the time that the contract is awarded
2. Tender prices generally qualify as commercially sensitive information for the purposes of section 36(1)(b). Depending upon the circumstances, product information can also be considered commercially sensitive under section 36(1)(b)
3. When a contract is awarded, successful tender information loses confidentiality with respect to price and the type and quantity of the goods supplied. The public interest also favours the release of such information, but exceptions may arise
4. Other successful tender information which is commercially sensitive (for example, details of the internal organisation of a tenderer's business, analyses of the requirements of the public body, or detailed explanations as to how the tenderer proposed to meet these requirements) may remain confidential. Disclosure in the public interest ordinarily would not be required, unless it were necessary to explain the nature of the goods or services purchased by the public body
5. Unsuccessful tender information which is commercially sensitive generally remains confidential after the award of a contract, and the public interest lies in protecting that information from disclosure.
The then-Commissioner also stressed, however, that each record must be examined on its own merits in light of the relevant circumstances.
Applying the above to the records at issue, I note first of all that a number of the records comprise letters to the unsuccessful tenderers, which contain a comparison of their scores with those awarded to the successful tenderer across a number of categories. Furthermore, other records contain references to the names of, and other information relating to, unsuccessful tenderers, which the Department has redacted. Noting that the release of information under FOI must be regarded, at least potentially, as release to the world at large (inasmuch as the FOI Act places no restrictions on the subsequent use to which such information may be put), I accept that the disclosure of information revealing that the companies in question submitted unsuccessful tender applications, as well as (where applicable) a comparison of their scores against those of the successful tenderer, and other information relating to unsuccessful tenderers, would be reasonably likely to prejudice the companies' competitive position in the conduct of their business, in satisfaction of the second harm test in section 36(1)(b). I take the view that a potential customer considering contracting with any of the unsuccessful tenderers could, potentially, be dissuaded from so doing on the basis of this information. Accordingly, I am satisfied that the records comprising correspondence to unsuccessful tenderers that were withheld in full by the Department, as well as information relating to unsuccessful tenderers that the Department redacted from other records, are within the scope of section 36(1)(b).
Certain other redactions made to the records are of information relating to, or provided by, the Department's financial advisor. The Department advised that communications with the financial advisor related to the financial assessment of the successful bid and contained commercially sensitive information relating to the bidder. I accept that this is the case in respect of some, but not all, of the information relating to, or provided by, the financial advisor. In particular, I note the name and email address of the financial advisor have been redacted from the records. While I examine below whether such redactions may be justifiable under section 37(1) of the FOI Act, I cannot envisage any manner in which this is commercially sensitive information for the purposes of section 36(1)(b).
In relation to the actual content of the communications from the Department's financial advisor, my view is that some of this information relates to details of the internal organisation of the successful tenderer's business and/or detailed explanations as to how the successful tenderer proposed to meet the tender requirements. I consider that such information could reasonably be expected, if released, to prejudice the commercial position of the successful tenderer in the future, by (for example) placing into the public domain information about its inner workings that could potentially be of use to a competitor. However, I am not satisfied that this is the case for all the material that has been redacted from the body of the internal Department correspondence to and from its financial advisor. In particular, certain material redacted from the body of the email from the Department's financial advisor of 12 December 2022 that forms part of Part B, records 31 and 43, and of additional record 1 (sentence beginning "I took a look at the email you sent to me-¦"), simply states that the successful tenderer's application has been judged to have met certain tender criteria. It says nothing about the details of the tender application or of the workings of the successful tenderer's business. I therefore do not find that this is commercially sensitive. Similarly, a file reference relating to the successful tenderer's application has been redacted from the email of 5 December 2022 that forms part of Part B, records 6 and 12. This reveals nothing of the details of the successful tenderer's business or of its tender application, and as such is not within the scope of section 36(1)(b).
In addition, I do not accept that certain material redacted from other records is commercially sensitive. For example, the information redacted from Part A, record 42 (in the internal Department emails of 13 and 16 January 2023) appears to be merely the name of a legal firm which may have written a letter on behalf of the applicant's company. I can envisage no manner in which the release of this information could give rise to any of the harms in section 36(1)(b). Similarly, I cannot see how the name of the successful tenderer, which has been redacted in a number of the records (for example Part A, record 47), could reasonably be expected to give rise to either of the harms envisaged by section 36(1)(b), especially given that it is in the public domain (having been published on the eTenders website). The Department also redacted a number of instances of the value of the successful bid (for example in Part A, records 23 and 50, Part B, record 39 and Part C, records 10 and 47) along with details of the contract signed between the Department and the successful tenderer. Both the value of the winning bid and the other relevant details of the contract are in the public domain (again, having been published on the eTenders website), and thus I do not accept that this is commercially sensitive information.
Furthermore, in the case of Part C, record 13, a number of pieces of information have been redacted, but none, as far as I can ascertain, could conceivably be described as commercially sensitive. In the case of Part C, record 15, while I accept that certain information in the record is subject to section 36(1)(b), I do not accept that the first three redactions to the internal Department email of 28 November 2022 (sent at 10:15), which are repeated in the internal Department email of 25 November 2022, comprise commercially sensitive information. These redactions relate to the circumstances in which the successful tenderer's bid was deemed to be the best option by the Department, and refers to the cost of the winning bid by comparison to the next cheapest bid. However, the information does not identify which tenderer made the next cheapest bid. I cannot therefore envisage a manner in which the release of this information could harm the commercial interests of any particular entity. Similarly, I take the view that the first redaction to Part C, record 24 (the internal Department email of 29 November 2022, sent at 09:05) is clearly not of commercially sensitive information. Meanwhile the second redaction to Part B, record 7 is a link to an internal Department file storage resource which does not appear to be generally accessible to non-Department staff. This does not seem to me to fall within the scope of section 36(1)(b). I make the same finding in respect of the name of a particular commercial entity not directly related to the tender process which has been redacted from certain records, for example the email of 6 December 2022 that forms part of Part B, record 15. I cannot see how the name alone of this company can be commercially sensitive in circumstances where that company was not itself a tenderer. In addition, I do not consider that Part C, records 5, 6 or 14 (which, as outlined above, show the Department discussing a draft letter) contain commercially sensitive information regarding any party.
I also note that a number of the redactions are of the applicant's email address, name the name of his company, on whose behalf his FOI request was made (for example Part B, record 19). Section 36(2) provides that an FOI body shall grant an FOI request to which section 36(1) relates if the record relates only to the requester. Accordingly, any references to the applicant, or the company he represents, are not within the scope of section 36(1)(b).
With the exception of the material I have identified above, I accept that the records withheld or redacted by the Department under section 36(1)(b) contain commercially sensitive information. For the avoidance of doubt, I do not accept that the applicant's contention that the successful tenderer has implicitly consented to the release of any information in its application that it did not explicitly identify as commercially sensitive. I am required to evaluate the contents of each individual record in respect of which an exemption is asserted. Based on the contents of the individual records, and with the exception of material above that I have found not to come within the scope of section 36(1)(b), I accept that the withheld information regarding the successful tenderer relates to its internal organisation and/or explanations as to how it proposed to meet the tender requirements, and that this is commercially sensitive and subject to section 36(1)(b).
Section 36(3)
In respect of the information in the records that I have found is subject to section 36(1)(b), the matter does not end there, as section 36(3) provides that subsection (1) shall not apply if, on balance, the public interest would better served by granting than by refusing access to the records at issue.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the legislation, FOI bodies must have regard to, among other things, the need to achieve greater openness in their activities and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of their decision making. I am also cognisant of the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the eNet case"), in which the Court held that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure".
In its submissions, the Department did not identify any public interest factors in favour of releasing the records in respect of which it cited section 6(1)(b). It argued that, in view of the nature of the records and in the context of the competitive environment in which tendering companies operate, on balance the public interest would be better served by withholding, rather than granting, access to the relevant records. In the applicant's submissions he identified, as public interest factors in favour of release, the need to achieve greater openness in the activities of FOI bodies; the need to promote adherence by FOI bodies to the principle of transparency in government and public affairs; the need to strengthen the accountability and improve the quality of decision making of FOI bodies; and the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies. As public interest factors against release, the applicant identified the need for FOI bodies to be able to perform their functions effectively, and the need to protect commercially sensitive information of public bodies. The applicant also referenced the Enet case, noting that the Supreme Court had stated that "From a practical point of view then, and in the light of the procedures for which the [FOI] Act provides, it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the [FOI] Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest....". The applicant argued that these requirements in the Enet case were unmet and that, on balance, the public interest was better served by releasing the records or, at least, releasing them redactions.
I have considered the public interest arguments of the parties in light of the records and find as follows. I note that section 36(1) itself reflects the public interest in the protection of commercially sensitive information. The view of this Office is that there is a public interest in protecting the commercially sensitive information of third parties, and furthermore that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of resultant commercial harm. As a general principle, I do not believe that the FOI Act was intended to enable scrutiny of the operations of private enterprises. In my view, the information I have identified above as commercially sensitive in relation to various entities would not tend to enhance openness and accountability in relation to the manner in which the Department processed this tender, or tenders generally, to any significant degree. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists. I find, therefore, that section 36(3) does not apply and that the Department was entitled under section 36(1)(b) to withhold the information in records I have identified above as commercially sensitive. I therefore am not required to examine whether additional exemptions cited by the Department apply to this information.
The Department relied on section 37(1) to withhold in full Part A, records 6-14; Part B, records 56-63; and Part C, records 5-6 and 34. In addition, it cited section 37(1) as a basis to partly withhold Part A records 24, 33, 35-39 and 42; Part B records 19-20, 22-23, 25 29-32, 37 and 43-44; Part C records 3-4, 9, 14, 18-20, 22-23, 25, 27-28 and 40-43; and additional record 2.
Under section 37(1), subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. Generally speaking, then, records shall be refused under section 37(1) if their release would entail the disclosure of personal information of individual(s) besides the requester, unless another relevant provision of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, section 2details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
In addition, Paragraph (I) of section 2 excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
In its submissions, the Department identified three categories of record which it considered were subject to section 37(1): firstly, the CVs of individuals, which it stated were comprised entirely of personal information relating to those individuals; secondly, letters of confidence regarding insurance; and finally, internal Department communication regarding the procurement process and award of the contract. The Department argued that all of these records contained or referenced personal information that had been given to it expressly in confidence and on the understanding that the information would be treated as confidential.
In his submissions, the applicant argued that the Department had failed to specify which information in the records it considered was personal. He argued that further explanation should have been provided by the Department as to how and why the information was personal and, where records withheld in full contained personal information, that they should have been released with the personal information redacted.
I have considered the arguments of the parties and find, firstly regarding the records withheld in full under section 37(1), as follows. I accept that Part A, record 2, comprises in large part personal information, and in particular the names of individuals and information relating to their educational history, employment and employment history. I make a similar finding regarding Part A, records 6-14, each of which, to my mind, are entirely comprised of the same types of personal information. I am also satisfied that the Part B, records 56-63 all comprise the personal information of individuals, specifically their names and information relating to their employment or employment history. In relation to Part C, record 37, I do not accept that the record in its entirety comprises personal information, as it appears to largely contain information relating to the Tender competition which is not personal to an individual; however, I accept that the email address of an individual in the email to the Department of 7 December 2024 is personal information.
I make a different finding in relation to Part C, records 5 and 6, in which I cannot identify any information that is personal for the purposes of section 2. Similarly, I do not consider that Part C, records 29-32, 34-36 and 38-39 contain personal information.
In respect of the records that the Department withheld in part under section 37(1), I accept that, where they appear in the records, the email addresses and names of individuals in the "To", "From" or "Cc" fields of emails, as well as in the body of emails, is personal information. Similarly, instances of the mobile telephone numbers of individuals and the employment history of individuals (both of which appear, for example, in Part A, record 33) are personal information. Information relating to the medical history of an individual (which appears, for example, in the internal Department email of 12 December 2022 which forms part of Part B, records 31 and 43 - sentence beginning "Apologies for the delay in-¦") is also personal for the purposes of section 2. I am satisfied that all such instances of this information in the records are within the scope of section 37(1).
I make a different finding in respect of certain other redacted information. For example, the Department has redacted information relating to the applicant himself (for instance in the email to the Department of 28 November 2022 that forms part of Part B, record 19). Section 37(2)(a) provides (with certain exceptions under section 37(3) which are not relevant here) that section 37(1) will not apply to information that relates to the requester. As such, references to the applicant alone are not subject to section 37(1). Similarly, in a number of records the Department the email addresses and names of its financial advisor and legal advisor, as well as (in additional record 2) the name of a contractor (acting in the capacity as a service provider). Other names of Department staff are also redacted in some records (for example Part C, record 23). I consider that all such material falls within the exclusion from the definition of personal information outlined above.
In respect of the information in the records that I have identified as personal for the purposes of section 2 of the FOI Act, the matter does not end there as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I have addressed above the records to which I consider section 37(2)(a) applies in this case.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. Firstly, section 13(4) provides that, subject to the legislation, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to records, except insofar as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under FOI must be regarded, in effect, as release to the world at large, as the FOI Act places no constraints on the uses to which a record released thereunder can be put. With certain limited exceptions, such as those provided for under sections 37(2)(a) and 37(8), FOI is not about granting access to information to particular individuals only and, as noted above, a requester's reasons for making a request are generally not relevant. Thus, records are not released under FOI for any limited or restricted purpose. All of this means that in considering whether a right of access exists to records under section 37(5)(a), any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies, I would also reiterate my points above regarding the requirements of section 11(3), and the Supreme Court's comments in the Enet case. Although Enet related to confidentiality and commercial sensitivity, I consider the comments of the Court relevant to the question of public interest tests generally.
In the Department's submissions, it did not specify public interest factors, but simply stated that the public interest in preserving the privacy rights of third parties outweighed, on balance, the public interest in releasing the information. The applicant, similarly, did not specify public interest factors in favour of the release of the records that might outweigh, on balance, the privacy rights of the relevant individuals. However, he did indicate that he had concerns regarding the manner in which the tender process had been conducted. While I consider that the applicant has essentially expressed a private interest for seeking access to the records (as a representative of an unsuccessful tenderer), it seems to me that the reasons for his request also reflect a public interest in ensuring that FOI bodies that issue RFTs, such as the Department, evaluate tenders in an objective and non-biased manner.
On the other hand, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the legislation (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
I do not accept that the release of the information in the records that I have identified as personal would serve to enhance, to any significant degree, transparency around the manner in which the tender competition was conducted. Moreover, while it might not be said to be especially sensitive, I have found it to be personal information and I must regard its release as being effectively, or at least potentially, to the world at large. Accordingly, I do not find that the public interest in releasing the records outweighs, on balance, the privacy rights of the relevant individuals. It follows that section 37(5)(a) does not apply.
Accordingly, I find that the Department was justified in refusing access in full, under section 37(1), to Part A, records 2 and 6-14, and Part B, records 56-63. I also find that the Department was justified under section 37(1) in refusing access to the material in the records that I have identified above as comprising personal information.
I do not consider it necessary to analyse section 35(1)(a) in detail, as I have already found the substantive redactions made to the records in respect of which the Department cited section 35(1)(a) to have been justified under sections 36(1)(b) or 37(1). However, there is a small amount of material in Part B, records 6 and 12 which I have not found to be exempt under either sections 36(1)(b) or 37(1), in respect of which the Department also cited section 35(1)(a) - namely, a file reference relating to the successful tender, and the name and email address of the Department's financial advisor. Section 35(2) is relevant here. This subsection provides that section 35(1) shall not apply to a record which is prepared by a staff member of an FOI body in the course of the performance of his or her functions 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 an FOI body or its staff. The relevant information was created by Department staff in the performance of their functions, and I cannot see how a duty of confidence, owed to a person other than an FOI body or its staff, might exist in respect of same. Section 35(2) therefore precludes the application of section 35(1)(a).
Section 15(1)(a) provides for the administrative refusal of an FOI request where record(s) do not exist or cannot be found, after all reasonable steps have been taken to locate them. The role of this Office in such cases is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether he or she was entitled to decide that the records do not exist or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records, as well as miscellaneous evidence about the FOI body's record management practices, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
In his application, the applicant specified a number of additional records he said ought to exist. The Department stated that it had been unable to locate any such records. In addition, it provided detailed information in relation to the steps it had taken to search for and identify relevant records, as well as to its file storage and management practices more generally. I do not consider it necessary to reproduce this information in detail here. Based on the parties' arguments, and the details provided by the Department, in my view there is nothing to suggest that all reasonable steps were not taken to search for relevant records. The information provided by the Department constitutes, to my mind, a clear and sufficiently detailed explanation of its systems and processes that accounts for the non-existence of additional records. I find it was therefore entitled to rely on section 15(1)(a) in respect of this aspect of the FOI request.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I find that it was entitled under section 31(1)(a) to withhold Part A, records 25, 27, 43, 44, 45; Part B; record 33; and Part C, records 29-33 and 35-39. I also find that the Department was justified in fully or partly withholding the records in respect of which it cited section 36(1)(b), with the exception of the information I have found above to not be commercially sensitive. Moreover, I find that it was entitled under section 37(1) to refuse access to the records, or parts of records, that I have identified above as containing personal information. Furthermore, I find that the Department was entitled to rely on section 15(1)(a) to refuse the aspect of the FOI request related to the purported existence of additional records. However, the remaining information in the records is not exempt under any provisions of the FOI Act cited by the Department, and I direct its release.
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Neill Dougan
Investigator