Decision
Mr Ken Foxe, Right to Know CLG and IDA Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-145736-K3Q2H5
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URL: http://www.bailii.org/ie/cases/IEIC/2024/145736.html
Cite as: [2024] IEIC 145736
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Whether the IDA was justified in refusing access to information in records relating to a rebranding exercise on the basis of section 36 of the FOI Act
23 September 2024
In a request dated 27 November 2023, the applicant sought access to records relating to the IDA's rebranding project. He sought a record of all costs associated with the project, broken down line-by-line or in as much detail as possible. He also sought a copy of the design brief and the business case/cost benefit analysis associated with the project. In a decision dated 22 December 2023, the IDA part-granted his request. It withheld certain information from the records on the basis of sections 36(1) and 40(1) of the FOI Act. On 28 December 2023, the applicant sought an internal review of the IDA's decision. On 22 January 2024, the IDA affirmed its original decision. On 24 January 2024, the applicant applied to this Office for a review of the IDA's decision. He noted that he was unhappy with the IDA policy around FOI decision-making and said that it appears to think that everything it does is exempt from release under the Act. He said that it had used its "usual scatter-gun approach" and that he did not wish to be drawn into making further submissions. He said that the IDA appears to have "infinite resources to frustrate transparency", which are "unavailable to [him] as an individual".
During the course of the review, and having considered the records at issue, I made the decision to notify a relevant third party (Company X) and provide it with an opportunity to make submissions, which it duly did.
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 the applicant, the IDA and the third party. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The IDA identified 7 records as coming within the scope of the applicant's request. It granted access to records 2, 5, 6 and 7 in full. It part-granted access to records 1, 3 and 4 on the basis of sections 36 and 40.
During the course of the review, the IDA altered its position and released record 4 in full. It released further information from record 3. It said that it determined, on reflection, that most of record 3 was not exempt under section 36 or 40. However, it said that it accepted the objections of Company X to the release of certain information in record 3. It said that it is continuing to withhold the parts of the record which Company X indicated are commercially sensitive. It said that it is no longer seeking to rely on section 40(1) of the FOI Act. It maintained its position that information redacted from records 1 and 3 is exempt on the basis of sections 36(1)(b) and 36(1)(c) of the FOI Act.
On foot of the IDA's revised position, I contacted the applicant to discuss the scope of this review. He confirmed that he wished the review to proceed and sought a decision in respect of the IDA's refusal to provide the remaining withheld information.
The scope of this review is therefore concerned solely with whether the IDA was justified in refusing access to information in records 1 and 3 on the basis of sections 36(1)(b) and 36(1)(c) of the FOI Act.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
While I must be circumspect in describing the records at issue, I note that they relate to a rebranding exercise undertaken by the IDA. In its decision-making records, it said that the exercise was the first rebrand undertaken by the organisation in 40 years. It said that it published an Invitation to Tender for the provision of brand strategy services in 2022 and that, following the completion of the evaluation process, the most economically advantageous tender was selected.
It said that record 1 details the costs associated with the rebrand, including rollout beyond the scope of the tender. It released the total cost of the project but withheld the costings associated with seven deliverables listed in the record. It said that record 3, which is described as the business case and which comprises a copy of a presentation entitled "Marketing Strategy 2022-2024", includes commercially sensitive analysis and assessments. It said that the appointed brand agency (Company X) provided proprietary knowledge and that disclosure of the analysis could reasonably be expected to threaten its competitive position. The IDA released certain information from the record but redacted other information.
Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant a request if the disclosure of the record sought 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 the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the text 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 section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage that could occur must be specified with a reasonable degree of clarity.
I note that in its original and internal review decisions, certain arguments advanced by the IDA related to harms concerning the FOI body itself. However, I note that the IDA revised its position in respect of certain records and exemption provisions during the course of this review. Its submissions to this Office related solely to the impacts of disclosure on Company X. The IDA outlined its view that "the records contain commercially sensitive business information, the disclosure of which could reasonably be expected to result in a material financial loss to, and could prejudice the competitive position of, the IDA's third party brand strategy services provider, [Company X]". It said that, having received a request for focused submissions, it consulted further with Company X as to whether it would have any objections to the release of records 1 and 3 on foot of the application for review made to this Office. It seems clear to me that the question at issue is whether release of the records could reasonably result in relevant harms to the third party brand agency, rather than the IDA. I will consider the submissions received below.
Record 1
In its submissions, and in respect of record 1, the IDA said that section 36(1)(b) applies to the more granular breakdown of the costs associated with the rebranding project and, in particular, the breakdown of costs associated with phase 1 and phase 2 of the exercise. It said that Company X undertook phase 1 and phase 2, which are outlined in the tender documents released as record 2. The IDA said that the withheld information is financial and commercial information which indicates Company X's pricing for different phases of the project. It said that even if the remaining information was released from record 1, save for the pricing relating to phases 1 and 2, it would still be easy to deduce the breakdown of costs associated with Company X's services.
The IDA said that the disclosure of the withheld information would reasonably be expected to result in material financial loss to Company X and prejudice its competitive position when seeking to tender for other work. It said that disclosure would provide competitors and prospective clients with an insight into its pricing model for branding projects. It said that this would weaken its competitive position in the market and allow other similar businesses to adjust their pricing accordingly to ensure their bids are more competitive. It said that Company X would not have access to equivalent pricing information regarding competitors and would therefore be at a disadvantage when submitting bids or tenders. This could result in it losing out on business opportunities.
In its submissions, Company X said that while it is not named in the records, the IDA rebrand has been documented publically, in the design industry, social media and mainstream print media. It said that its partnership with the IDA has been heavily communicated since the brand's launch and it is known to be attached to the organisation when it comes to strategy and branding. It said that in order to increase its chances of winning the tender, it costed the project competitively. It made further submissions about the rate offered. It said that if information about the fee breakdown were to be made available, it would be setting a precedent for offering a particular rate to all prospective clients and would therefore expect to experience financial loss. It said that if submitting public tender responses, it would be tied to this level of fixed pricing. It said that any revelations regarding its financial breakdowns could seriously impact its success rate in future tenders. It said that revealing the information would expose its commercial strategy to competitors, potentially resulting in the loss of tenders. It said that this would undermine its extensive experience with government and related organisations.
Company X said that although the maximum budget associated with the project is public knowledge, the cost proposal for the initial phase was deliberatively competitive. It said that as part of its business strategy, it made it its mission to win the tender in question, recognising the IDA's compatibility with its portfolio and knowing that it would have the potential to unlock future business opportunities. It said that it typically adopts a flexible pricing strategy for each phase of a project based on an evaluation of various factors. It said that release of the phased costing breakdowns would fix its pricing. It said that this would negatively impact its business by tying it to charge a fixed amount despite variations in client needs, limiting its ability to adjust to market trends or price changes and reducing its potential for profitability. It said that release gives competitors an unfair advantage and enables undercutting. It said that it reveals expected set fees to prospective clients and may harm relationships with existing clients who have paid more for what they might see as identical services. This could lead clients to seek alternative solutions with other service providers.
I have carefully considered the submissions received in respect of record 1. At the outset, I note that Company X is the service provider which secured the tender for brand strategy services as set out in record 2, which has been released in full to the applicant. The estimated value of the framework agreement is in the public domain. The information at issue relating to Company X is the actual cost of its brand strategy services, split into two phases of delivery comprising two lines of the costing breakdown in record 1. According to the IDA, the remaining lines relate to a breakdown of costs for services provided by other third-party service providers. No service providers, including Company X, are named in the record. The information in the record relating to deliverables is high-level, including that relating to phase 1 and 2 provided by Company X.
The Commissioner has previously summarised his views with regard to the release of records relating to tender competitions. In sum, when a contract is awarded, successful tender information loses confidentiality with respect to price and the type and quantity of goods supplied. The public interest also favours the release of such information, but exceptions may arise. This Office has accepted that other successful tender information which is commercially sensitive (for example, analyses of the requirements of the public body or detailed explanations as to how the tenderer proposed to meet these requirements) may remain confidential. Record 1 contains no such information. It discloses high-level detail in respect of successful tenders for services and IDA spending in respect of its rebranding exercise. The IDA referred to the record as providing "more granular details of the costing of the branding project". I do not accept that the record could be described as granular; the information therein is of a general nature and lacking in detail.
Company X has argued that the release of the phase 1 and phase 2 costing information would fix its pricing at a rate which it set competitively to secure the tender in question. It seems to me that every time a company tenders to provide a service, it must consider its bid in comparison to the market more generally. Tendering is an inherently competitive endeavour. Company X has acknowledged that it adopts a flexible pricing strategy for each phase of a project based on an evaluation of various factors. I do not accept that the release of high-level, phased costing information would fix the company's pricing. A contracting body will generally set the estimated value of the framework agreement and will set out the specification of requirements. It seems to me that these factors will impact the company's bid far more than the disclosure of pricing relating to a specific project, the invitation to tender for which issued in October 2022. Furthermore, it seems to me that clients seeking brand strategy services will be aware that fixed fees do not exist and that the cost of service provision will depend on their specific requirements as well as a host of other factors. Such clients will likely have a set budget and if they do not want to or cannot pay the price quoted, they will not. Record 1 does not disclose any details in respect of the work carried out by Company X; it does not disclose the specific services the IDA received for the payments made.
I do not accept that the release of the information at issue will result in the harms articulated by Company X or the IDA. The IDA's Invitation to Tender (record 2) includes specification requirements in respect of phases 1 and 2 as well as the estimated value of the framework agreement. Record 1 merely discloses how that value was split against phases 1 and 2 by Company X. I do not accept that the disclosure of that level of detail, in respect of a company which successfully tendered for the service in question, would result in the relevant harms. Bodies subject to FOI legislation are required to provide certain details in relation to public procurement under the Model Publication Scheme including public contracts awarded over €25,000 to include the contract type, contractor, value, award date, duration and a brief description. I note that in respect of public contracts awarded, the IDA website currently includes the following note in respect of such information: "to follow, format currently being agreed internally". While the information does not appear to be currently available via the IDA, I consider the fact that the State actively requires the publication of such tender details to undermine significantly any harm arguments advanced.
Given the relatively low bar associated with section 36(1)(b), I considered carefully whether the release of slightly more detailed tender pricing information could prejudice the competitive position of Company X. However, given the nature of the information and the specific contents of the record, I simply do not accept that the relevant harms could reasonably be expected to occur. I find that the IDA has not justified its reliance on section 36(1)(b) in respect of the information withheld from record 1. Furthermore, having carefully considered the content of the record and the submissions of Company X, I am not satisfied that release could result in the harms envisaged in either part of section 36(1)(b).
Record 3
The IDA said that the information withheld from record 3 is commercial information which it obtained from Company X. It referenced specific information in the record. It said that the information contains Company X's commercially sensitive professional insights and solutions, which would not ordinarily be shared outside of the agency/client relationship. It said that this consists of paid advice and creative direction and a commercial analysis of third party brands. The IDA said that the analysis of these brands are the insights of Company X and release could potentially affect its ability to work with the brands in the future. It said that release of the information would, in general, undermine Company X's market positioning and put it at a competitive disadvantage by making its insights and strategy available to the world at large including competitors and potential clients.
The IDA acknowledged that it created record 3 but said that this was done using material previously prepared and provided to the IDA by third party service providers. In particular, it said that before Company X won the tender for brand strategy services, it provided analysis of the IDA brand to an advertising agency engaged by the IDA. The IDA said that this information was used to prepare record 3.
The IDA said that the disclosure of the withheld information in record 3 would reasonably be expected to cause material financial loss to Company X. It said that disclosure would undermine its business model and the services it provides. It said that the information is very closely drawn from analysis, insights and advice which Company X provided to the IDA via an advertising agency. It said such information was only intended to be seen and used in the context of the client/agency relationship. It said that were the information to be released, work which would only be available to paying clients would be available to the world at large. It said that while the information had been tailored to address the IDA's specific brand and concerns surrounding its branding, it also highlights the approach of Company X to branding in general. The IDA said that prior to its rebranding, it had a number of issues with its branding which are common across similar sized organisations. The IDA also said that the record contains analysis of third party brands which could be seen as critical, reflecting negatively on Company X. The IDA said that its work could be reused by competitors or by potential clients of Company X. It said that this would result in a material loss in the form of loss of revenue and loss of new mandates from clients.
In its submissions, Company X said that while record 3 is an internal IDA document, it was created using content original drafted and supplied by Company X. It said that the brand analysis is a compilation of professional insights and solutions. It said that the document puts forward analysis and recommendations which, if shared more widely, would reveal to its competitors key confidential characteristics and ambitions specific to the brand/organisation. It said that the record contains a brand strategy framework model which it considers to be its intellectual property. It said that beyond this, the document represents a proprietary approach to how Company X compiles brand audits. It said that release would provide competitors with an unfair competitive advantage permitting them to replicate Company X's tried and tested approach. It said that the set-up, structure and components could be replicated by clients resulting in financial loss.
At the outset, I must again reference the fact that the record at issue is an internal IDA document. It does not credit or refer to Company X in any way. The IDA said that information provided by Company X to an advertising agency engaged by the IDA was used to prepare record 3. I understand that Company X had not won the tender to provide brand strategy services at this point. It seems to me that had the IDA simply released the record at issue, it would not have been in any way apparent that Company X was involved in the production of the record and any arguments in respect of harm to that company would have been significantly undermined, if not nullified. However, in its decision, the IDA said that the appointed brand agency provided proprietary knowledge and expertise to assess and develop the new brand. As such, I have carefully considered whether the release of the information withheld from the record could reasonably be expected to result in the relevant harms to Company X.
While I must again be circumspect in respect of the contents of the record, I believe it is important to note that the rebranding exercise referenced in the request and records has concluded. Record 3 comprises an internal presentation which incorporates what I would consider to be high-level analysis of the previous IDA brand. The document also includes high-level assessments of the branding utilised by a small number of other organisations.
I note that the IDA and Company X have argued that release would enable competitors and clients to undermine the company. Respectfully, I do not agree. The record contains high-level commentary and factual assessments in respect of the previous IDA branding. The detail is specific to the IDA and I do not accept that it provides sufficient insights to enable competitors or clients to replicate the work of Company X in respect of other brands. I would argue that much of the withheld information is relatively innocuous. I believe that both the IDA and Company X are significantly overstating the impacts of release. I note that the record at issue was created prior to the contracting of Company X in respect of brand strategy services. It seems to me that the more substantive work undertaken by Company X would have taken place in the context of that tendered contract and would therefore not be included in the presentation at record 3.
I have also considered the references to third party organisations in the record. Again, I consider that the detail actually contained in the record is factual and does not comprise a comprehensive or detailed assessment of a third party brand. I do not accept that release of the information could provide competitors with sufficient insights to prejudice the competitive position of Company X. For the avoidance of doubt, nor do I accept that release of the information could cause any relevant harms to the named third parties.
Finally, I note that Company X referenced a particular brand strategy framework model which it considers to fall under its intellectual property. Company X merely stated that the framework model constituted intellectual property, it made no further substantive submissions, nor did it direct my attention to specific information. However, I understand this to be a reference to pages 3 and 4 of the record, which refer to a brand strategy model. I note that the majority of information on page 3 has been withheld while page 4 has been partially released. Once again, I must note that the information relating to the model contained in the record is general and high-level in nature. A cursory google search returns similar models and branding frameworks. That is not to diminish the nature of the strategic work undertaken by agencies like Company X. Rather, it is to point out that the internal IDA presentation does not include a level of detail which I consider could reasonably result in the relevant harms to Company X. I again note that the record contains no reference to that company. The IDA released page 23 of the record which details brand recommendations and includes a recommendation that the body tender for a specialist branding agency to complete a more comprehensive audit. I note that Company X subsequently won a tender to provide brand strategy services. It seems to me that record 3 constitutes a high-level document relating to the commencement of a rebranding exercise which is now complete. Notwithstanding Company X's reference to intellectual property, I do not accept that the level of detail contained in the record could result in the relevant harms under subsection (b).
In sum, given the nature of the record and the specific information withheld, I find that the IDA was not justified in relying on section 36(1)(b) to refuse record 3 in part. Furthermore, having carefully considered the content of the record and the submissions of Company X, I am not satisfied that release could result in the harms envisaged in either part of section 36(1)(b).
Section 36(1)(c) provides for the mandatory refusal of a request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, this Office expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and would be able to explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations.
In its submissions, the IDA said that the disclosure of the withheld information in record 1 could very likely prejudice the conduct or outcome of future contractual and price negotiations between Company X and its current or potential client base. It said that this is because the information would reveal Company X's pricing for a branding strategy project for an organisation of the IDA's size. It said that it does not have insight into whether its pricing was more competitive for the IDA given its nature as a public body. It said that release would give potential clients an insight into how it priced another project and would give them an upper hand in negotiations if they were aware that Company X had costed a similar project in a more competitive manner. It also said that potential clients of Company X would be more likely to go with competitors who can undercut the company.
In respect of record 3, the IDA made more limited submissions but said that the disclosure of the withheld information could likely prejudice the conduct or outcome of Company X's negotiations. It said that this is because the information could serve to undermine the value of the services being offered by Company X if aspects of its brand services are made available to the world at large for free.
Company X made submissions in respect of section 36(1) generally, as opposed to in respect of the specific subsections. I do not intend to repeat its submissions, which I have outlined above, but I confirm that I have considered them in full.
It seems to me that many of the arguments advanced in respect of subsection (c) are closely connected to those considered in respect of subsection (b). In effect, both the IDA and Company X argued that the release of pricing information or branding assessments could provide insights to competitors, existing clients, or potential clients, prejudicing the conduct or outcome of future negotiations in respect of brand strategy services. I note that no specific negotiations have been identified. The submissions received relate to general future negotiations of the company. As set out above, I am not convinced that the release of the high-level information contained in the records could be expected to result in the financial or competitive harms advanced by the parties. For the same reasons, I am not satisfied that release could prejudice the conduct or outcome of contractual or other negotiations of Company X. I do not accept that the release of the general pricing information contained in record 1 could be expected to provide sufficient insights to prejudice negotiations. The tendered pricing reflects the specific requirements of the project and I do not accept that release would serve to fix Company X's costings. The estimated value of the framework agreement is already in the public domain. Similarly, the high-level analysis or assessments contained in record 3 relate specifically to the previous IDA branding and, to a much lesser degree, to certain third party organisations. I do not accept that release of the record discloses proprietary information such that the future negotiations of Company X could be prejudiced. I find that the IDA was not justified in refusing access in part to records 1 and 3 on the basis of section 36(1)(c). Furthermore, having carefully considered the content of the records and the submissions of Company X, I am not satisfied that release could result in the relevant harms envisaged by subsection (c).
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the IDA's decision. I find that it was not justified in refusing access to the withheld information in records 1 and 3 on the basis of sections 36(1)(b) and 36(1)(c) of the FOI Act. I direct the release of the relevant information.
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.
Alison Connolly
Investigator