Case number: 140233
On 10 June 2014, the applicant made a request to the Council seeking the Service Level Agreement (SLA) and quarterly reports "pertaining to the Simon run homeless hostel at The Warrens, 5 and 6, Kilmantin Hill, Wicklow".
While the Council initially decided to refuse access to both records, a copy of the one available quarterly report was released at internal review stage, while the decision to refuse access to the SLA was upheld. On 2 September 2014, the applicant applied to this Office seeking a review of the Council's decision to refuse access to the SLA.
During the course of this review, this Office requested and received submissions from the Council, the applicant, and the third party, Dublin Simon Community. In its submission to this Office, Dublin Simon Community stated that it would be amenable to the release of the SLA with Schedule A, details of staffing structures, and a small amount of personal information redacted. In light of these submissions and following contact with the applicant, Mr. Benjamin O'Gorman of this Office contacted the Council to see if it was amenable to settling the case by releasing a redacted copy of the SLA. While the Council initially indicated it was agreeable to releasing a redacted copy of the record it subsequently changed its position and stated it would only release the SLA on foot of a formal binding decision by this Office.
Therefore, it is now appropriate to conclude this review by means of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the Council, and to correspondence between this Office and Dublin Simon Community, the Council and the applicant. I have also had regard to the contents of the record at issue and to the provisions of the FOI Act.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
The Council's argument for refusing access to the SLA was that release of the record could prejudice the competitive position of Dublin Simon Community. On the other hand, Dublin Simon Community has stated that it has no objection to the release of the record, with the exception of Schedule A (comprising service operating costs for the project), details of staffing structures pertaining to the project, and a small amount of personal information redacted. Accordingly, on the basis that Dublin Simon Community is prepared to release the record with the exceptions outlined, the scope of this review is concerned solely with the question of whether the Council was justified in its decision to refuse access to those parts of the SLA, namely Schedule A, details of staffing structures pertaining to the project, and certain information relating to a named individual.
Dublin Simon Community provided this Office with a draft of the SLA that it was amenable to releasing. Part of the information redacted from the draft included the name and contact details for its service manager for the project concerned. A cursory online search revealed that this information is readily accessible online. I note, for example, that the relevant details are contained in a Simon Community brochure relating to Wicklow Homeless Support Service entitled "Making Home a Reality". Section 46(2) of the FOI Act provides that the Act does not apply to records that are publicly available. Accordingly, as this information is already in the public domain I find that it is not exempt from release under the provisions of the FOI Act.
The Council refused access to the record on the basis that it contains commercially sensitive information and is exempt from release pursuant to the provisions of Section 27(1)(b) of the FOI Act. Dublin Simon Community's arguments for objecting to the release of the details of staffing structures pertaining to the project and the service operating costs as set out in Schedule A are also based on the harms identified in section 27(1)(b).
Section 27(1)(b) of the FOI Act provides for the refusal of a request if the record contains financial, commercial, scientific, 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. Section 27(3) provides that a record to which section 27(1)(b) applies may be released if the public interest in its release outweighs the public interest in withholding it.
The essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The main thrust of the arguments put forward by the Council and Dublin Simon Community relate to concerns about the release of the service operating costs at Schedule A of the SLA. The Council argued that the competitive position of Dublin Simon Community could be prejudiced by the release of the record. It argued that the Schedule contains all of the financial information which a tenderer would be required to submit and as the SLA only applied for a 12 month period, it believed this financial information to remain relevant. Dublin Simon Community argued that the release of Schedule A and details of the staff numbers and breakdown of roles at section 4.3 of the record would disclose details of the staffing covering in place, the type of worker employed, the direct and indirect costs associated with the delivery of services and would give an insight into its general approach to tenders including its methodology for pricing. It argued that disclosure of such specific information would prejudice the competitive position of the organisation in future tendering of such services and seriously impair its ability to operate in the sector. It further argued that the release of this financial information would be tantamount to the release of its current pricing strategy and such a release could reasonably be expected to result in material financial loss to the organisation. It contended that competitors would be able to calculate the staffing resource, configuration and costs associated with the type of service Dublin Simon Community is providing.
For the exemption to apply, the only requirement that has to be met is that disclosure could prejudice the competitive position of the person concerned. The standard of proof necessary to meet this test is relatively low. Having carefully considered the arguments advanced, I am satisfied that the release of the service operating costs at Schedule A and details of the staff numbers and breakdown of roles at section 4.3 could prejudice the competitive position of Dublin Simon Community. I find, therefore, that section 27(1)(b) applies. I will now turn to consider the question of the public interest in the release of the information I find to be commercially sensitive.
Section 27(3) - the Public Interest
The Long Title to the FOI Act declares that its purpose is "to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies . . . ". The underlying presumption of the FOI Act, therefore, is that access to information held by public bodies will be granted in the normal course, subject only to the exemptions as provided for in Part III of the FOI Act. A number of these exemptions (e.g. section 27) contain a provision whereby access to information may be granted in the public interest. Section 27(3) of the FOI Act requires that the "public interest" be considered when deciding whether to grant or refuse access to records which contain information of a financial or commercially sensitive nature (section 27(1)(b)).
The Council argued that while there is a public interest in members of the public having access to information in the possession of public bodies and in the Council's accountability in the use of public funds, the public interest in ensuring that Dublin Simon Community should not be duly impeded in the effective pursuit of its business by the making public its financial arrangements to other similar organisations prior to a new tender process for this service outweighed, on balance, the public interest in favour of granting the request. Dublin Simon Community also acknowledged the public interest in government and local authorities being open and accountable, particularly in the use of public monies. However, it argued that the majority of the funding for the provision of the service in question has been provided by Dublin Simon Community itself. It further argued that the public interest in local authorities being open in the use of public funds has been swerved, to some extent, in this case as details of the Council's funding of the project are a matter of public record. I note, also, that Dublin Simon Community did not object to the release of information set out in the SLA comprising details of the Council's funding of the project for 2014.
This Office accepts that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result and it is this public interest which section 27(1) seeks to protect. However the FOI Act also recognises, both in its long title and in its individual provisions that there is a significant public interest in public bodies being open and accountable. In attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, this Office must consider the positive public interest which is served by disclosure and the harm that might be caused by disclosure. Openness and accountability in the use of public funds is a significant aid to ensuring effective oversight of public expenditure, to ensuring the public obtains value for money, to preventing fraud and corruption and to preventing the waste or misuse of public funds.
In this case, it seems to me that the public interest in the promotion of openness and accountability has been served to some extent by the agreement to release details of the Council's contribution to the project. While the release of the details of the staffing structures pertaining to the project and the service operating costs as contained in the SLA would serve to further enhance the level of openness and accountability, I do not believe that the public interest in doing so is sufficiently strong to outweigh the public interest in ensuring that the competitive position of Dublin Simon Community is not prejudiced.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Council in this case. I find that the SLA should be released with the exception of the service operating costs as set out in Schedule A and the details of staffing structures pertaining to the project as set out in section 4.3
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.