Case number: 090258
The Commissioner's authorised official varied the Council's effective decision that all records relevant to the Applicant's request should be withheld. He directed the release of 28 particular invoices along with a further invoice concerning a report. He also directed the release of two items of correspondence that listed the Company's charge-out rates per day per grade of employee, subject to the redaction of those charge-out rates. He directed that the remaining records at issue (28 timesheets that had been attached to the 28 invoices referred to above) be withheld.
Whether the Council is justified in its effective refusal of certain records relating to the post-excavation phase of the M1 Dunleer - Dundalk Motorway (the "M1") archaeological contract.
The Applicant made a request to the Council, on 20 July 2009, for:
On 12 August 2009, the Council consulted with the Company further to section 29 of the FOI Act, on the basis that it considered that the records relevant to the request should be released in the public interest, notwithstanding that it also considered them to be exempt under section 27 of the FOI Act (which provides for the refusal of commercially sensitive information). The Company's letter of 26 August 2009 argued against the release of the records on such grounds. However, the Council failed to issue a decision on the Applicant's request within the timescales provided for in the FOI Act and thus, the request was deemed to have been refused. The Applicant sought a review of this deemed refusal by way of application to this Office, dated 6 October 2009 (no internal review was conducted as is case with all requests to which section 29 of the FOI Act applies). During the course of the review, and further to the Company's consent, the Council located and released four reports compiled by the Company on its Archaeological Excavations/Investigations.
In conducting my review, I have had regard to details of various correspondence between Ms Anne Moran, Investigator in this Office and the Council; to details of various correspondence between Ms Moran and the Company (in which, apart from maintaining that the majority of the records the subject of the original consultation still maintained commercial sensitivity, the Company consented to the release of 27 invoices and a letter dated 23 August 2001); to various details in correspondence between Ms Moran and the applicant (particularly Ms Moran's letters to the applicant of 1 and 3 November 2010, the views therein being accepted by the Applicant further to an email of 26 November 2010); to the records the subject of the review (copies of which were supplied to this Office for the purposes of this review); and to the provisions of the FOI Act.
Conducted in accordance with section 34(2) of the FOI Act, by Sean Garvey, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.
Although the Council did not number or schedule the records the subject of the original consultation, Ms Moran's earlier correspondence with the Applicant advised that they could be categorised as follows:
Ms Moran's letters to the Applicant of 1 and 3 November 2010 explained that she accepted the Company's argument that 20 of the invoices at issue, including eight referring to the Company's "retainer" rate, should be excluded from the review. The invoices dated from 1999 and 2000 and refer to the Archaeological Monitoring and Post Investigation stages of the archaeological works, which the Company stated to be entirely separate from the post-excavation stage. I agree with Ms Moran's view and will proceed accordingly (in this regard, I note that the Applicant did not object to this approach).
Similarly, Ms Moran's letter of 1 November explained that a number of rate quotations concerning the Archaeological Excavation/Investigation and Archaeological Monitoring phases of the works would be excluded from the scope of the review. She also explained that she considered the date of a further quotation - dating from mid 1998 and referring to an estimate for additional works necessary on foot of a discovery during Archaeological Monitoring - to suggest that it was unlikely to relate to post-excavation works, and that unless the applicant could provide details to the contrary, she intended to exclude this invoice from the review. I consider Ms Moran's approach to be reasonable. While I note that the Company has not responded to Ms Moran's requests for clarification in relation to this invoice, neither has the Applicant argued that post-excavation works might have been carried out during 1998. On balance, and having regard to the exclusion of certain older records as set out above, it seems to me that I have no reason to find the further quotation to be relevant to the review and I do not intend to consider it further.
The records at issue include four invoices submitted to the Company by specialists. It appears that the Company duly sought reimbursement of those invoices (on which it levied an additional handling charge) from the Council.
In earlier correspondence with the Applicant, Ms Moran advised that she had written to the specialists seeking their consent to the release of invoices submitted by them, of whom two had confirmed that the records concerned could be released. In her letter to the Applicant of 1 November 2010, Ms Moran advised that she would thus request the Council to release the invoices concerned. She said that the respective invoices submitted by the Company would also be released, subject to redaction of the total amount of the bills, before and after VAT (further to the Applicant's email of 14 July 2010, which confirmed that details of the handling charges imposed by the Company were not required). I note that a hand-written note on one of the invoices refers to handling charges; such details should also be redacted.
Ms Moran also told the Applicant that it seemed that the Company had initially submitted an incorrect invoice to the Council, in respect of an invoice received one of the specialists referred to above, following which it submitted a credit note to rectify its error, and later correctly re-submitted the invoice. She explained that the total of the credit note, before and after VAT, would have to be redacted to ensure that the details of the handling charge on the initial invoice could not be arrived at.
Ms Moran also confirmed that the invoices submitted by the remaining two specialists (and the invoices that the Company submitted to the Council for reimbursement thereof) would not be considered, further to the Applicant's email to this Office of 12 July 2010. She said that, in summary, there appeared to be nothing further for this Office to consider in respect of this particular group of records. I agree with Ms Moran's view (to which I note the applicant did not object) and I will proceed accordingly.
Ms Moran explained to the Applicant that she considered that aspect of the request seeking "a summary of the total amount of expenditure on archaeology on the [M1] ... " to have been settled by the Council's agreement to produce a summary of the total amounts paid in euro and punts to the Company for archaeology works in general, and the amounts paid for its post-excavation work on the Whiterath 1 and 2, Braganstown/Newrath, Dunleer/Dundalk, and Crumlin 2 sites. This summary was produced with the Company's agreement, although it has made it clear that this "does not confirm [its] agreement with the figures in the summary". Ms Moran explained that the relevant element of the request would thus be excluded from this review (to which no objections were received) but that the review would, however, consider whether or not the invoices that would give a breakdown of the post-excavation expenditure should be released, due to the fact that those records were essentially requested as other elements of the request.
Finally, Ms Moran told the Applicant that she was taking it that it was not contended that further reports, other than the four located in the course of this review, exist.
Having regard to the above, and as advised to the Applicant on 1 November 2010, the scope of this review is confined to the sole issue of whether or not the following records should be released or withheld in accordance with the provisions of the FOI Act:
Section 27(1)(b) provides for the refusal of a record if 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.
Ms Moran's letter to the Applicant of 1 November 2010 explained that the Council now considered that the records at issue should be released, on the basis that they were no longer commercially sensitive. That letter also outlined that the Company had argued that the details at issue, although historic, would nonetheless enable competitors to derive the Company's current operating costs, overheads and ancillary financial outlays, and thus should be exempt under section 27(1)(b) of the FOI Act.
Ms Moran outlined that the Courts have found records released under FOI to have been effectively placed into the public domain (i.e. disclosed to the world at large), and that, although the Applicant had said that the information was not being sought for any commercial gain, it was reasonable to assume that the Company's competition could use any current information so released to their own benefit.
Ms Moran explained to the Applicant that she had initially considered the records at issue not to have any current commercial significance because of the difference between prices today and prices tendered 10 years ago. She outlined the Company's counterargument that, while prices/rates lose relevance over time and change with the prevailing economic climate, its financial and pricing structures had not changed significantly in the past 11 years. Thus, it was the Company's case that current pricing strategies were commercially sensitive assets of the Company, and could be arrived at from an analysis of the records at issue. Ms Moran explained that the costs of deploying particular numbers of staff, when combined with details of their grades and hours worked (as would be divulged by the 28 timesheets and covering invoices), would enable calculation of the chargeout rates levied by the Company to the Council for these different grades of employee. She said that, in turn, this would reveal the chargeout differentials between grade of employee, which the Company claimed not to have changed significantly in the intervening years.
Ms Moran also outlined the Company's argument that an analysis of the timesheets and invoices would disclose resource concentrations peculiar to the post-excavation stage of the contract, which would in turn give an insight into the Company's work methodologies and practices. The Company had argued that, as each project is individual, "deployment of resources to tackle the individual requirements of projects is part of the service provided and strategy adopted and the matter in which each company deals with these issues is highly sensitive."
Ms Moran advised the Applicant that she accepted the Company's argument that it would be useful to its competition to know, or to estimate with some certainty, what it might currently charge for the works the subject of the records at issue. In this regard, such details would be relevant not only to any completion of the current project that may be required (see comments below on the Company's arguments that negotiations in this regard are ongoing) but to tenders into which it may enter for future similar projects. She said that, while maintaining the view that details of rates as contained in the records are historic and have no relevance today, she accepted that percentage differentials between chargeout rates remained relevant and could be calculated from the 28 invoices and attached timesheets. Having regard to the low threshold that must be met for section 27(1)(b) to apply, she accepted that section 27(1)(b) applied to the combination of these records, and to the two items of correspondence listing the Company's chargeout rates per day per grade of employee.
Ms Moran also accepted that, while report fees may not be the same today as those charged some ten years ago, the Company's competition would be able to make an educated guess at current rates by applying an appropriate percentage reduction to these historic rates, and considered such details also to be exempt under section 27(1)(b) of the FOI Act. I note that the Applicant did not take issue with any of Ms Moran's views as set out above. I agree with Ms Moran's views and I find the records to be exempt under section 27(1)(b) accordingly. I would also accept that details of the Company's work methodologies in respect of the post-excavation aspects of the archaeological works would be similarly exempt.
Further to section 27(3) of the FOI Act, however, I must consider whether the public interest in the release of these records outweighs the public interest in withholding them.
Ms Moran outlined to the Applicant that, in favour of release, was the public interest in ensuring openness in, and accountability for, the Council's expenditure of public monies in relation to aspects of the M1; and that, in favour of withholding the records, was the public interest in protecting the Company's current commercial interests. She said that she considered the best way to balance these interests was to fully release the 28 invoices; to fully release the invoice concerning the report; to fully withhold the timesheets attached to the 28 invoices; and to partially release the two items of correspondence listing the Company's chargeout rates per day per grade of employee.
In explaining her recommendation in this regard, Ms Moran said that she considered the release of the 28 invoices (which did not disclose the basis on which the daily rates therein were arrived at) would meet the public interest in ensuring the Council's accountability for the expenditure of public monies. While accepting that disclosure of the invoice regarding the report would reveal information that would be of use to the Company's current competition, withholding it would mean that an element of public expenditure is kept secret. However, having regard to the other details that she considered should be withheld to protect the Company's current pricing strategy (see below for Ms Moran's views in this regard), she said she considered the public interest in favour of release of this record to be greater than that in withholding it.
Ms Moran outlined her views as set out above to the Company (her letters, also of 1 and 3 November 2010, refer). While the Company did clarify certain matters raised therein, it neither clarified the remaining issues nor objected to Ms Moran's recommendations. However, previous correspondence from the Company consistently maintained that all details in this case are commercially sensitive (or have potential to reveal current commercially sensitive information) and that there is no public interest in its release, in that this "does not enhance or increase the local authority's accountability or its ability to be transparent in the application of public funds."
Assuming that the Company maintains its objections to the release of the details referred to above, it should be noted that I consider there to be a public interest in ensuring maximum openness regarding expenditure of public monies and it follows that I must consider there to be a very heavy public interest in release of relevant details in this case.
I also agree that there is a public interest in enabling commercial bodies, that are not of themselves subject to FOI, to conduct their business without undue hindrance or intrusion into their commercial affairs. However, I consider the scale of any intrusion into those commercial affairs to be a relevant factor in weighing up the strength of this public interest. For instance, while I accept that amounts paid to the Company will be disclosed, it is difficult to see how knowledge of historic financial information can have any commercial impact on it today. Furthermore, in the absence of the attached timesheets (see below), the invoices do not disclose how the various daily rates charged therein were calculated, and thus there can be no disclosure of differentials in employee chargeout rates or of work methodologies. On balance, I agree with Ms Moran's views as to the release of the 28 invoices, and I find accordingly.
I accept that the invoice regarding the report discloses the sum charged by the Company for the compilation of a report in the post-excavation stage of the archaeological works, and that disclosure thereof might enable competition to gauge how much the Company might charge for such a report today. However, it must be borne in mind that this detail comprises just one component of the Company's pricing strategy for a specific stage of the archaeological works. No other details about the component costs or methodologies pertaining to the post-excavation stage are evident from this record, nor are any details about the other stages of the archaeological works process. Having considered the above, I have no reason to consider release of this detail likely to impact on the Company's commercial interests such that its ability to carry out its business would be significantly undermined. Thus, I consider the weight of the public interest in release of this invoice to by far outweigh the public interest in withholding the information therein, and I find accordingly.
Ms Moran noted that there could be argued to be a public interest in disclosing information that would enable an assessment of the value for money of the expenditure the subject of the 28 invoices - specifically the time spent by Company employees on which this expenditure is based as would be revealed by the attached timesheets. However, as she also noted, it would not be possible to quantify the value of work carried out by each employee, because details of the particular tasks they conducted on a particular day are not evident from the records. Thus, Ms Moran was of the view that release of the timesheets would add very little to the general understanding of the nature of the services conducted by the Company. As noted above, however, she considered that such release would disclose how the Company deployed resources in relation to the post-excavation stage of the archaeological works, and, if released in addition to the invoices to which they are attached, could disclose an element of the Company's current pricing strategy. Ms Moran thus considered the weight of the public interest to be served by release of the timesheets to be, on balance, less that the weight of the public interest in withholding them and protecting the details therein. She also considered that such details as contained in the two items of correspondence listing the Company's chargeout rates per day per grade of employee should similarly be withheld. I note that the Applicant accepts these views and approach (the email of 26 November 2010 refers). I agree with Ms Moran's view and find accordingly.
Ms Moran explained to the Applicant that the Company contended that negotiations were pending between it and the Council in relation to the completion of the archaeological works, and therefore that section 27(1)(c) should also be found to be applicable to the records. She also outlined that this was at odds with the Council's position that there are neither ongoing negotiations nor plans to commence such negotiations.
She explained that she did not consider it to be this Office's role to resolve this issue, or to determine whether further archaeological works are required for the M1. As mentioned earlier, it is the Company's contention that the details at issue are relevant not only to the completion of the current project but to tenders into which it may enter for future similar projects. It seemed to Ms Moran that, in either scenario, the details at issue would have to have current commercial significance. Having accepted that this was the case in respect of chargeout differentials and work methodologies, Ms Moran outlined to the Applicant that she accepted that release of such details could prejudice the Company's negotiating position in respect of any similar contract into which it may currently seek to enter, which she did not consider to be, overall, in the public interest. I agree with her view and find accordingly.
Ms Moran acknowledged that this view could be seen to be at odds with her view that the invoice regarding the post excavation stage report should be released in the public interest. She noted, however, that disclosure of that invoice could reveal only one aspect of the Company's current pricing strategy for a particular stage of the archaeological works as a whole, and that no other current financial information, or any details of work methodologies, would fall to be released. Accordingly, she considered that the impact on the Company's negotiating positions that might arise from release of the cost of the report concerned would not be such that the need to mitigate against that impact outweighed the public interest in accountability for the public monies spent in respect of that report. I agree with Ms Moran's views, which she also outlined to the Company. In short, I am not satisfied that the Company's ability to conduct negotiations in relation to any other similar projects would be compromised to an extent that the cost of the report should be withheld. I find accordingly.
It should be noted that I have no reason to find that historic details of sums paid to the Company, as contained in the 28 invoices, would reveal any current negotiating positions and thus I would not find such details to be exempt under section 27(1)(c). Even if these invoices were so exempt, I would find the public interest in accountability for the expenditure of public monies to outweigh the public interest in protecting such negotiating positions.
Having carried out a review under section 34(2) of the FOI Act, I hereby vary the Council's effective decision that all records relevant to the Applicant's request be withheld. I direct that the 28 invoices referred to under "Scope of the Review" be released in full along with invoice number 20198, dated 29 May 2000. I also direct that the two records of correspondence, dating from 2001, that list the Company's charge-out rates per day per grade of employee be released subject to the redaction of those charge-out rates. I direct that the remaining records at issue (the 28 timesheets) be withheld.
I would ask that the Council issue the summary referred to earlier in this letter as soon as possible, along with the 27 invoices and letter dated 23 August 2001 the release of which was agreed to by the Company, and the redacted invoices and credit note pertaining to the relevant specialists as set out earlier in this letter. Such release need not be delayed pending expiry of the eight week period during which my decision may be appealed to the High Court.
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 on which notice of the decision was given to the person bringing the appeal.