Case number: 080232

Whether the Council is justified in its decision under section 27 of the FOI Act to refuse access to records sought under section 7 of the Act. The withheld records comprise a "concession contract" and related records concerning the provision of outdoor advertising and public amenity services in Dublin by JCDecaux.

Case Summary

Issue

Whether the Council is justified in its decision under section 27 of the FOI Act to refuse access to records sought under section 7 of the Act. The withheld records comprise a "concession contract" and related records concerning the provision of outdoor advertising and public amenity services in Dublin by JCDecaux.

Decision

The Information Commissioner found that whilst parts of the records contained commercially sensitive information and qualified for exemption under section 27(1) of the FOI Act, the public interest in granting the request outweighed the public interest in refusing it in the case of all but one part of the records (section 27(3)). She found that the confidentiality exemption (section 26(1)) claimed by JCDecaux did not apply to the information in the records in the circumstances of this case. She held that the Council's decision was not justified under section 26 or under section 27 of the FOI Act and she directed the release of the records with the exception of part of one letter.

Date of Decision: 15.06.2009

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

The FOI request made on 11 August 2008 by the Sunday Times was for "a copy of all correspondence between JCDecaux and Dublin City Council in relation to the 'bikes - for - billboards' scheme...[to] include all tender documents, details of the contract awarded to JCDecaux and all internal correspondence within DCC concerning the JCDecaux scheme. The applicant excluded from his request material released on foot of a previous FOI request. The Council, in its decision of 12 August 2008 (the day after the request was made), refused access to the records on the basis that they were exempt under sections 27(1) of the FOI Act. The decision made no reference to section 27(3) of the Act or to consideration of the public interest as required by section 8(2)(d). The applicant applied for an internal review of the Council's decision. In its internal review decision dated 19 September 2008, the Council affirmed the original decision. Again, that decision did not address the public interest. The applicant applied to this Office, on 26 September 2008, for a review of the Council's decision. In conducting this review, I have had regard to the submissions of the Council, as well as those of JCDecaux and the applicant, the contents of the records (copies of which have been provided to this Office by the Council, and the provisions of the FOI Acts. I have also had regard to the preliminary views, dated 31 October 2008, 13 February 2009 and 30 April 2009 which Mr. Desmond O'Neill, Investigator and Ms Elizabeth Dolan, Senior Investigator of my Office sent to the parties.

It may be helpful to set out some background to the subject matter of the records. In December 2005, JCDecaux submitted a tender to the Council in response to an invitation to bid as part of a competition for the provision of outdoor advertising and public amenities in the city. The company's bid was successful and the concession contract was dated 23 November 2006. In the contract, the term "concessionaire" is used to describe JCDecaux. Subsequently, planning applications for the erection of advertising structures were dealt with by the Council and, in some cases, by An Bord Pleanála on appeal. The Council, in its decision to release some records to the applicant in April 2008, put the value of the contract to it over a 15 year period at a minimum of €84 million. The agreement includes provision and maintenance of bike rental, way finding and civic information systems.

Scope of Review and Preliminary Matters

In the course of this review, the applicant agreed, in January 2009, to limit the scope of the review to record number 4 - "Concession Contract in relation to the Provision of Outdoor Advertising and Public Amenity Services" i.e. the agreement and schedules 1 to 5 inclusive.

However, on 20 May 2009, at a very late stage of my Office's consideration of the case, the Council forwarded additional records which post date the contract document but clearly relate to its terms. These records were created before the applicant's FOI request was made. There had been no previous indication from the Council or from JCDecaux in correspondence with my Office that these records were held and ought to have been considered within the scope of the original request and this review. The 5 records (9 pages including 2 appendices) comprise correspondence between the Council and JCDecaux during 2007 containing clarification of the November 2006 position on the "Wayfinding" elements of the scheme. JCDecaux has stated that these records do not constitute a revised contract in that they reflect requirements already contained in the terms of the original contract. The Council informed my Office that these records comprised the ''revised contract" and said that it had not released these to the requester and "does not wish to do so for the reasons set out in our previous submission". My Office suggested to the Council that it might wish to explain why these records had not been previously brought to attention. It apologised for the fact that the documents were "inadvertently omitted" due to an oversight. I consider that the additional records must be dealt with in this review and that the Council's handling of this case has not been in accordance with the requirements of the FOI Act.

The issue in this review is whether or not the Council is justified, within the terms of the FOI Act, in refusing access to (i) those parts of record number 4 which were not previously released to the applicant and (ii) the 5 additional records relating to the contract. I note that JCDecaux has indicated that it does not object to the release of certain parts of the records; however, my decision deals with all parts of the contract and associated records which the Council refused to release.

Submissions

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Findings

The underlying presumption of the FOI Act is that requests for access will be granted, subject only to necessary restrictions. I draw attention to section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This places on the Council the onus of showing, to my satisfaction, that the decision to refuse access to the records is justified in terms of the provisions of the FOI Act. I will, of course, also take account of the submissions of the third party (JCDecaux) in this case including those received in response to my Office's invitation to comment on the additional records forwarded by the Council in recent weeks.

In accordance with section 43(3) of the FOI Act, I must take care not to disclose any material in an exempt record. This means that I am somewhat constrained in the analysis which follows by the necessity to avoid detailed discussion of the content of the records.

Section 26: Information given in confidence

Although the Council did not rely on section 26 in its decisions, JCDecaux claims that the record is exempt from release under section 26(1) of the FOI Act which states:

"(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if_(a) the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or (b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law."

The Council made no mention in its decisions of a duty of confidence owed to the company. However, in a submission to my Office, it argues, in the context of the public interest, that the contract entered into contains confidentiality clauses and that it is "not permitted to release the documents requested without the express consent of JCDecaux". For its part, JCDecaux refers to clauses within the contract and states that the contract expressly prohibits release of confidential information. Clause 16 (the content of which has, as I understand it, already been released to the applicant), refers to an agreement that both parties will keep "all business, financial and other confidential information" secret and confidential. In addition, the contract provides that all information relating to "the nature of the Services, the affairs of the Council or any of its requirements shall be strictly confidential as between the Council and the Concessionaire." JCDecaux 's position is that, whilst it notes my Investigator's view and the findings of previous Information Commissioner decisions that, since the advent of FOI, public bodies cannot give any guarantees of absolute confidentiality, the absence of Irish caselaw in this area indicates that there is no reason to suggest that where a public body enters into an express duty of confidence, this should not be enforced. I return to the issue of the confidentiality agreement below in my consideration of whether section 26(1) applies in this case.

Section 26(2)

In considering section 26(1) of the FOI Act, it is first necessary to look at whether that sub-section is dis-applied by section 26(2) which provides:

"(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) 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 a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services."

There are two tests to be met for the restriction to apply; one has to do with the source of the record at issue and the other has to do with the identity of the person in respect of whom a duty of confidence is owed (and where disclosure of the record would constitute a breach of a duty of confidence). The first test requires that the record concerned is one "prepared" by a public body or by "a person who is providing a service for a public body under a contract for services". The second test requires that the duty of confidence is one owed to a public body or to a "person who is providing or provided a service for a public body under a contract for services". Clearly, the section 26(1) exemption is not intended to protect the interests of a public body or the interests of persons acting as a contractor to a public body.

Applying these tests to the present case, it is clear that the records concerned (the contract and the 5 associated records) were "prepared" by the Council. In response to a query from my Office, the Council said that the contract had been drafted by solicitors on its behalf and that its law agent had made amendments. My Office drew the attention of the parties to the decision of the High Court in The Health Service Executive and the Information Commissioner and BK - [2008] IEHC 298 - in which Mr Justice McMahon found that breach of a duty of confidence could not be claimed where the confider of the information was a person who could not have an agreement of confidentiality with the public body to whom information was being given. In its submissions, JCDecaux states that its provision of ''highly commercially sensitive financial information'' to a public body as part of the negotiation and finalisation of a contract cannot constitute the preparation of an internal record by a person who is already providing a service for a public body in the course of the performance of their functions. In this regard, I would point out that the majority of the records were prepared by or on behalf of the Council and that the decision of the High Court in the case cited rejected an argument that a document reciting information given by a third party cannot be said to have been ''prepared'' by a public body within the meaning of section 26(2). JCDecaux signed a contract to become contractors to the Council in November 2006 and the letters created by JCDecaux in 2007 were created after this. I do not accept that the Council owes a duty of confidence to JCDecaux who are providing a service to the public body under a contract for services.

My finding is that, for the reasons set out above, section 26(2) applies in this case so that neither the exemption at section 26(1)(a) nor the exemption at section 26(1)(b) can apply to the records at issue.

Understanding of confidence

Notwithstanding my finding that section 26(2) applies, I will go on to consider whether the parties could have had a mutual expectation and understanding that the contents of the contract would be kept confidential. Such understanding would have been necessary if either of the section 26(1) exemptions were to apply. Although JCDecaux is no longer objecting to the release of some parts of the contract, its underlying position is that it is entitled to rely on the express prohibition on the release of the information in the contract.

My predecessor interpreted the term "confidence" for the purposes of sections 26(1) by reference to the following definition, which is derived from the law relating to a breach of a duty of confidence: "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose." ("B" v. Brisbane North Regional Health Authority, (1994) 1 QAR 279, at paragraph 45, quoting from F. Gurry "Breach of Confidence" in P. Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111.). Based on this definition, the former Commissioner considered that, first, information given in confidence is concerned with private or secret matters rather than information which is trite or which is already in the public domain, i.e. that it is necessary to establish that the information has the necessary quality of confidence. Second, the communication must be for a restricted or limited purpose. Third, there must be an understanding that the information is being communicated for a restricted purpose. In Henry Ford & Sons Limited, Nissan Ireland, Motor Distributors Limited and the Office of Public Works, Case Number 98049 (on www.oic.ie), the former Commissioner interpreted the term "understanding" in the context of section 26(1)(a) as meaning a mutual understanding between the confider and the confidant. I agree with this interpretation.

In my decision in the case of 000528 (John Burns of the Sunday Times and the HSE on www.oic.ie) , I set out my views on confidentiality agreements in an era of FOI and expressed the belief that, since the advent of FOI, some restrictions are imposed on the use of such clauses. Given the importance of openness and accountability in the public service and the fact that, at the time these records were requested, the FOI Act had been in force for over ten years, I am satisfied that the Council and JCDecaux were well aware of the implications of the Act. This is borne out by a reference in the invitation to tender for the concession at paragraph 2.13 : "The Council is subject to the provisions of the Freedom of Information Acts 1997-2003. Bidders are asked to consider if any of the information supplied by them in response to this ITB should not be disclosed because of its sensitivity. If this is the case, Bidders should, when providing the information, identify same and specify the reasons for its sensitivity. Please note, it is not sufficient to include a statement of confidentiality encompassing all the information provided in your Bid."

JCDecaux refers to the provisions of clauses 16.1 and 16.3and says that the contract contains an express prohibition on the release of confidential information. However, I note that clause 16.4 goes on to provide that: "The provisions of this clause 16 shall not prevent either party from disclosing confidential information where it is required to do so by law or by a binding court order save that, to the extent legally permissible, it shall notify the other party of such disclosure and allow that party a reasonable opportunity to object to such disclosure." I take this to indicate that a direction to the Council by the Information Commissioner to release records under the FOI Act would not breach the confidentiality clause. I am satisfied that, in effect, the FOI Act creates implied terms which bear on the capacity of public bodies to enter into confidentiality agreements. I have taken account of the fact that the record in this case does not disclose matter which is of an intrinsically private or secret nature. I draw attention to the terms of the confidentiality clause which appear so broad and general that it is difficult to see how they could be enforceable in circumstances where one of the parties is a public body e.g. they make reference to all information relating to the nature of the services.

I note that although the tender document is no longer the subject of this review, JCDecaux submits that the most sensitive parts of the contract disclose details of the financial offer proposed to the Council as part of the tender. As advised by the Central Policy Unit (CPU) of the Department of Finance in its Notice No. 9 to public bodies on FOI and Public Procurement: "With the advent of the Freedom of Information Act, public bodies will not be able to give guarantees of confidentiality which have previously featured in public procurement." As the former Commissioner cautioned in Case Number 98188, "no tender-related records are subject to either release or exemption as a class; therefore, each record must be examined on its own merits in light of the relevant circumstances." I further note that, this is a de novo consideration of the application of section 26(1) based on the facts and circumstances prevailing at the date of my review. Thus, for instance, even where a stipulation for confidentiality was reasonable at the time the information was imparted, but has since become unreasonable in light of subsequent events, section 26(1) will not apply- see decision of the Queensland Information Commissioner in "B" v. Brisbane North Regional Health Authority previously cited: "There will be cases where the seeking and giving of an express assurance as to confidentiality will not be sufficient to constitute a binding obligation, for example if the stipulation for confidentiality is unreasonable in the circumstances...".

As stated also in "B" v. Brisbane North Regional Health Authority: "[T]he confider's conduct cannot unilaterally and conclusively impose an obligation of confidence." Clause 16 relied upon by JCDecaux is general and does not specify any particular secret matter or any reasons for the need for confidential treatment. Moreover, I find that the company could not reasonably have expected that the contract document would be treated as confidential indefinitely given the nature of the contract including the benefit in kind that the successful tenderer stood to receive from the public in return for the services specified.

In relation to the application of the FOI Act to successful tender documents, it was held in Case 98188 - Mr Mark Henry and the Office of Public Works - that, in general, when a contract is awarded, successful tender information loses confidentiality with respect to price and the type and quantity of the goods supplied. I see no reason to depart from this view in the context of the contract information in this case. Whilst I accept that the Council is not paying money to JCDecaux on foot of the contract awarded, the same principles would apply where the successful tenderer stands to gain from concessions awarded and benefits in kind to be received.

Even if section 26(2) did not operate to dis- apply section 26(1) of the FOI Act, I would find that disclosure of the information concerned would not meet the requirements of section 26(1)(a) as set out above because, owing to the nature of the information and the relationship between the parties, there could not have been a mutual understanding that the information would be kept confidential. I would also find for the reasons outlined that disclosure of the contract would not constitute a breach of a duty of confidence under section 26(1)(b).

Section 27(1): Commercially sensitive information

Both the Council and JCDecaux claim that the records are commercially sensitive and that the exemption at section 27(1) applies to the withheld parts. Section 27(1) provides as follows: "... a head shall refuse to grant a request under section 7 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".

The tests in section 27(1) are based, not on the nature of the information, but on the nature of the harm which might be occasioned by its release. The standard of proof required to meet these exemptions is relatively low in the sense that the test is not whether harm is certain to materialise, but whether it might do so.

It is clear that the person whose interests are sought to be protected is JCDecaux. The company says that release of the commercial and technical information would be extremely valuable to its competitors and thereby damaging to its financial position. It appears that it is arguing primarily that the information qualifies for the section 27(1)(b) exemption. In addition, it argues that certain details qualify for the section 27(1)(c) exemption insofar as their disclosure could prejudice the tender process whereby the company will select a manufacturer for elements of the scheme. It cites previous findings of my Office in relation to commercially sensitive information and submits that, given the relatively low threshold for establishing whether the commercial interests of a private operator might be damaged, documents revealing detailed information about a company's current pricing strategy or ''otherwise unavailable product" could fall within the scope of that exemption even following the conclusion of a tender competition.

The company specifies those parts of the records to which it does not object to being released and those which it believes are commercially sensitive and should be withheld. I have carefully examined the parts of the records which JCDecaux identifies as being particularly sensitive. I have attempted to distinguish between financial, commercial, technical or other information the disclosure of which could reasonably be expected to result in loss or prejudice to the company and information which is primarily about the Council, the sites, the services and the ''public'' element of the agreement. This is a relatively novel type of scheme in which the Council has awarded certain concessions to the company in return for certain gains or benefits to be provided by the company via the Council to the public. It is clear that the interests to be protected (if any) under section 27 are those of the company and it is not the financial or other affairs of a public body that are envisaged in relation to the section 27(1) exemption. The financial and economic interests of public bodies are separately dealt with in section 31 of the Act which has not been relied upon by the Council in this case.

While the Council identifies some parts of the tender documentation (no longer within the scope of the review) as material the release of which might prejudice the competitive position of JCDecaux, it does not point to any particular parts of the contract in this regard. It asserts that the records contain information which is exempt under section 27 of the FOI Act.

JCDecaux argues that some of the terms of the contract were negotiated in confidence with the Council and that their release would prejudice ongoing and future negotiations in relation to similar projects as well as cause damage to its competitive position in Ireland and abroad. It says that breakdowns of project revenue, valuation of services to be provided and financial assumptions are highly sensitive. As regards the confidentiality argument, I have found above that section 26 of the Act does not apply; in any case, it is not any ''confidential" aspect of the information that would bring it within the protection of section 27 but the harm that might be caused by its release. In earlier cases, most notably case 98049 (Henry Ford and Sons, Nissan Ireland and Motor Distributors Ltd and the Office of Public Works) - it was accepted by the Information Commissioner that knowledge of prices offered could disrupt the companies' business relationships with other customers, and perhaps cause some customers to seek other suppliers. In that case, it was held that disclosure of the relevant prices could prejudice the competitive position of the parties whose prices were revealed, and that section 27(1)(b) of the FOI Act applied. Although prices are not at issue here, I accept that there is some possibility that knowledge by competitors of certain of the terms offered by JCDecaux to the Council could prejudice the competitive position of the company. Although I have some reservations as to the extent of any possible prejudice given the uniqueness of the Dublin city sites and the nature and scale of the contract, I find the following information qualifies for exemption under section 27(1)(b) of the FOI Act:

Contract November 2006

  • Page 1 - sixth and eight definitions under "Interpretation"
  • Page 3 - Clause 2.1
  • Page 12 - Clause 12.10
  • Schedule 2
  • Schedule 3
  • Schedule 4

Additional records from 2007

Appendix 2 to the letter from JCDecaux dated 12 June 2007; the first 3 lines and the last 3 lines (bullet point) on page 2 of the letter from JCDecaux dated 26 July 2007; the last sentence of paragraph 2 (first bullet point) of page 1 of the letter from Dublin City Council dated 18 July 2007. Furthermore, I am prepared to accept the company's argument that the information in the first 3 lines on page 2 of its letter of 26 July 2007 which contain unit prices of structures which will be subject to a future tendering process qualifies for exemption under section 27(1)(c) of the Act.

Even though I have found that section 27(1) applies, there is a further provision within section 27, at sub-section (3), which provides for the release of information which is commercially sensitive where such release is in the public interest; I consider this below.

In addition, as JCDecaux says that it has no objection to release of other parts of the contract and additional records withheld and the Council has not justified its refusal of access to them under the FOI Act, I find that the remaining parts of the records within the scope of this review are not exempt and should be released.

Section 27(3) - The Public interest

Section 27(3) of the FOI Act provides that the exemptions contained in section 27(1) do not apply to a case "in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request .....".

To apply section 27(3), it is necessary to identify the various public interests served by the release of the particular record as well as those served by the withholding of that record. Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other. Various public interest factors to be considered have been set out in my Office's preliminary views letters; I do not intend to repeat all of the detail of those letters but their contents are relevant for the purposes of this decision.

I note that many of the previous decisions involving commercially sensitive information involved records of successful tenders for the supply of goods and services. In this case, the parties stress that there is no money being paid by the Council to JCDecaux. I consider that this fact does not take away from the significant public interest in openness and transparency in the matter of contracts which public bodies enter into in connection with managing land and other assets on behalf of the public. What is at issue here is not a routine type tender for goods or services but an agreement with the successful tenderer for the provision of certain services to the Council in return for significant "concessions" afforded to that tenderer in relation to, inter alia, rights over certain sites in public ownership. Whilst the Council is not paying a sum of money to the company and it is proposed that it would gain from the arrangement, I take it that the rights afforded to the company have value as a benefit in kind and that the contract is in the nature of a commercial transaction.

I consider that this contract cannot be treated as if it is a private or secret arrangement when one party - the public body - is charged with the management of the capital city, including the sites affected. In my view, there is a need for transparency and accountability in the usage of public property and public assets. There is a strong public interest in the proper administration of public contracts and ensuring that value, in the broadest sense of that term, is obtained. I believe that there is a compelling public interest in openness and transparency in transactions/agreements involving the finances and assets of public bodies whether or not expenditure or revenue is involved.

I note that the Council's Internal Audit Unit has commenced an audit of this contract award following a request from the Council's Audit Committee. The existing systems of audit and scrutiny provide certain safeguards but this does not mean that there is no public interest in creating further safeguards. I am not suggesting that anything untoward occurred in the Council's handling of the matter but I think it is fair to say that the very existence of secrecy carries with it the scope for abuse.

In its submissions, JCDecaux states that it has been accepted in case 99183 (McKeever Rowan and Department of Finance on www.oic.ie) that certain information about a successful tenderer's approach in general remains confidential and commercially sensitive. I have no difficulty with this finding. Indeed, in case 98188 (Mark Henry and the Office of Public Works) on which the findings in 99183 are based, the Commissioner stressed that each record relating to a tender competition must be examined on its own merits in light of the relevant circumstances. However, I draw attention to the fact that in that same decision (99183) the then Commissioner went on to say that disclosure in the public interest could be required if it were necessary to explain the nature of the goods and services paid for by the public body. Indeed, it seems to me that the decision in 99183 found that the records which qualified for exemption under section 27 related, broadly speaking, to the expertise, internal organisation and client information of the legal firm involved as opposed to information about the services being supplied to the public body as is the case here.

I accept that the public interest arguments need to be carefully weighed in order to separate, for example, any details of the internal organisation of the company's business from matters which would cast light on the rationale for the scheme from the point of view of the public body's functions and obligations including the quid pro quo of the concessions involved. I have carefully examined JCDecaux's submissions in the light of the information it identified as being particularly sensitive. With one exception (which is dealt with below), I have been unable to find in the withheld materials details of the company's approach, including financial assumptions, which are not central to the acceptance and operation of the concession by the Council. In other words, I consider that the information at issue is necessary to explain and allow for an evaluation of the agreement that the Council has entered into with JCDecaux.

The extent of any harm which might result from disclosure, and the likelihood of its occurrence, are relevant factors here. JCDecaux says that disclosure of detailed information would damage its commercial interests. A further argument put forward by JCDecaux on the public interest in withholding the information is the public interest in enabling private entities to have confidence in the contractual undertakings of public bodies. It states that the disclosure of certain terms offered to the Council might prejudice the making of similar offers to the Council or to other public bodies which would not serve the public interest.

The Council says that it would not be in the public interest for it to be exposed legally or financially from any breach of contract or other actions resulting from release of the record. The Council expresses the view that the records would be of ''no value" to the public at large and that the fact that the contract has been subject to a competitive tendering process means that the public interest in maximising openness, accountability and value for money has been served.

I consider that my comments above on the application of section 26 are relevant in relation to any expectation of absolute confidentiality in the context of FOI and this type of agreement between a contractor for services and a public body. I disagree with the Council's contention that the information in the record is of no value to the public and that the tender process itself is sufficient to safeguard the public interest in accountability in the circumstances of this case. It seems to me that the public has not, to date, sufficient information on which to assess the Council's handling of the matter and to understand what the city might stand to gain or lose from the contract entered into.

I accept that insofar as the contract contains some commercially sensitive information on JCDecaux's financial proposals, a certain amount of harm may be caused to its business interests if this material is released. The weight that I can accord to this possible harm is reduced somewhat by a number of factors. The first is that the information pertains to a "once-off'' situation involving specific sites and circumstances in the capital city which would not necessarily be applicable to any future similar concessions. The contract does not disclose how JCDecaux arrived at the tender offer or calculated the projections involved. The company suggests that certain terms in the contract were on a par with a ''special price'' offered in the context of a competitive tender the disclosure of which would disrupt relationships with other customers. I do not accept that, in the particular circumstances, the terms offered are in the nature of trade secrets. Even if they are, knowledge of the terms by parties to future similar contracts may not automatically confer a significant advantage because the behaviour and requirements of parties to any future concession agreements cannot be predicted. Apart from some maintenance information, the records disclose little about the design, technical features or installation of the structures. I note that some of the sites listed have already been the subject of planning applications and appeals which would have brought details of the proposed locations of the advertising structures into the public domain. As regards the possibility that similar offers might not be made to public bodies, I am inclined to the view that such future decisions are more likely to be based on wider commercial considerations than the risk that the contract terms could be disclosed under FOI.

I take account of the fact that the contract was signed in November 2006 with certain aspects clarified in 2007 when revenue projections would, presumably, have been based on the particular economic outlook in Ireland at that time such that the information is now historic. The company argues that, because of the duration of the contract, the information is not historic; however, it is clear from the records that most of the figures are in the nature of projections and estimates rather than actual pricing information. As stated in previous decisions, knowledge by future tenderer of historical prices does not automatically provide any advantage given the inability to predict the behaviour of competitors. I consider that knowledge of revenue estimates is similar. In balancing the public interest, a prejudice which is no more than a mere possibility has to carry a great deal less weight than a prejudice which is likely to occur. Because of these considerations, is it seems to me that release of the information could not have the same adverse impact as, for example, the release of quoted unit prices for goods during a tender process or release of a formula on which detailed financial projections were based.

Unit Prices

I do not consider that, on balance, the public interest would be better served by the release of that part of the records which discloses the likely unit prices for structural elements of the scheme. It is proposed that a competitive tender competition be held in relation to the structures involved and I consider that the public interest in having this detail is outweighed by the public interest in allowing that tender process to be conducted fairly and efficiently. I consider that these details are relatively incidental to the scheme as a whole and that disclosure of them would cast very little light on the rationale for or the operation of the scheme in the context of the public interest factors discussed above.

Conclusion

In the circumstances, I am of the opinion that the advantages in terms of openness and accountability of disclosing the contract and associated records outweigh the possible harm to JCDecaux and I find that the public interest in this case is better served by release of the records with the exception of one part containing unit prices. I find, therefore, that section 27(3) applies with one exception and that all of the contract and the associated records described in this decision should be released except for the first 3 lines on page 2 of JCDecaux's letter of 26 July 2007.

Decision

Having carried out a review under section 34(2) of the FOI Act , I hereby annul the decision of the Council in this case. I direct it to release record Number 4 together with the associated records received from the Council with the exception of the material identified above.

Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this decision.

Emily O'Reilly

Information Commissioner

15 June 2009