Case number: 140298
This review arises from a decision made by the Department to release records following an FOI request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to cases where the public body has considered at some stage in the decision making process that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that the record(s) should be released in the public interest. Where section 29 applies, the public body is required to notify the affected third parties before making a final decision on whether or not the exemption(s) considered to apply should be overridden in the public interest. The requester or affected third parties, on receiving notice of the final decision of the public body, may apply for a review of that decision to the Office of the Information Commissioner directly.
In March 2013 the IPS published a request for tenders in relation to the provision of pharmacy services and supplies to three prison locations (Lots 1-3). On 8 August 2014, the original requester sought a copy of tender response documents submitted by the applicant from the Department in respect of Lots 2 and 3. The applicant was the successful tenderer in respect of both Lots.
The Department's decision maker identified 41 records in respect of Lot 2 and 40 records relating to Lot 3 as coming within the scope of the request. She was of the view that the public interest would be better served by granting than by refusing access to the records, and notified the applicant of her right to make a submission if she did not want the records to be released. The applicant subsequently made a submission identifying the information she believed should not be released, including information she considered to be commercially sensitive.
Subsequently, on 16 October 2014, the Department informed the applicant that it had decided "to release the information" in the public interest. While the Department did not specify which records it intended to release in its letter to the applicant, it is now clear that the Department's decision was to part grant the request by releasing a number of records in full (A10, A34, A35, A38, A39 and A40 in relation to Lot 2 and A33, A34, A37, A38 and A39 in relation to Lot 3), and two (A41 in respect of Lot 2 and A40 relating to Lot 3) in part. On 29 October 2014, the applicant applied to this Office for a review of the Department's decision.
During the course of the review, Ms Sandra Murdiff, Investigating Officer in this Office, wrote to the applicant enclosing a copy of the records the Department had decided to release. The applicant indicated that she did not wish the records A41 (Lot 2) and A40 (Lot 3) to be released. Accordingly, I have decided to conclude this review by way of a formal binding decision.
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.
In conducting this review, I have had regard to the submissions of the Department and of the applicant. I have also had regard to the provisions of the FOI Act and to the contents of the records in question, copies of which were provided to this Office for the purposes of this review.
Records A41 (Lot 2) and A40 (lot 3) are essentially copies of the same record. The record comprises a completed Costs Template and contains details of the applicant's pricing schedule in respect of its tender proposal for each of the three Lots for which tenders were invited. The pricing details include the annual cost of medications (gross and net of discount), the annual management fee, and the total overall cost for each Lot. The Department decided to grant access to the total cost figure only for each Lot.
It appears that the Department decided not to redact information relating to Lot 1 from records A41 and A40. I note that the original requester did not seek records concerning Lot 1 in relation to the applicant. Therefore information relating to Lot 1 is outside the scope of the original request and this Office's review of the Department's decision in this case. Accordingly, the scope of this review is concerned solely with the question of whether the Department was justified in its decision to grant access the total cost figure for Lots 2 and 3 as contained in the relevant records.
It is important to note that, as set out at section 34(12)(a) of the FOI Act, where a decision to grant a request to which section 29 applies is being reviewed by the Commissioner, there is a presumption that the granting of the requested access is justified unless the person (to whom the information relates) shows to the satisfaction of the Commissioner that the decision was not justified. Thus, in this case, the onus is on the applicant to satisfy this Office that the decision to grant access in the public interest is not justified.
Section 27(1)(b) of the FOI Act provides that a head shall refuse to grant a request for records if the records in question contain 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.
In previous decisions, this Office has explained its approach to interpreting the words "could...reasonably be expected to...." in the context of section 27 of the FOI Act. In determining whether access "could reasonably be expected to affect adversely" one of the interests outlined in section 27(1), this Office takes the view that there must be adequate grounds for any such expectation at the time the decision to refuse access is made. The mere possibility of some adverse effect is not sufficient. This Office has also found that a relatively low threshold applies in determining whether information is commercially sensitive on the basis of prejudice to a company's competitive position. The test is not whether harm is certain to materialise, but whether it might do so.
The records at issue in this case are documents submitted by the applicant in response to a request for tenders request and comprise a Pricing Schedule containing cost information in respect of each Lot. The applicant argued that her company's competitive advantage could be adversely affected by the release of the total cost of the contract. She argued that anyone with access to the original tender request documents and the records at issue could calculate the combined management fee and discount applied by her company. She argued that this information is the most sensitive piece of pricing information in the tender document. In essence, her argument is that the release of the total contract awarded figure could prejudice the competitive position of her company when the services are again put out to tender.
I note that the IPS has published the details of the lowest and highest offers received on the www.etenders.gov.ie website. That site is designed to be a central facility for all public sector contracting authorities to advertise procurement opportunities and award notices. While the specific total cost figures for the applicant's tender have not been published, it is clear that successful tenderers can have no expectation that tender prices will remain confidential after the completion of a tender process. I accept that the disclosure of the total cost figure would allow the applicant's competitors to calculate the value of the combined management fee and discount offered. It would not, however, allow for the separate calculation of the actual management fee or the discount offered. Nevertheless, as I have outlined above, a relatively low threshold applies in determining whether information is commercially sensitive on the basis of prejudice to a company's competitive position. Accordingly, I find that section 27(1)(b) applies to the total cost figure for each Lot.
However, that is not the end of the matter as section 27(3) provides that the exemptions contained in section 27(1) do not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.
On the matter of where the balance of the public interest lies in this case, I note that there is a strong public interest in optimising transparency and accountability in relation to the utilisation of public funds. Given the value of the contracts at issue in this case, it seems to me that the public interest in ensuring transparency and accountability is significant. On the other hand there is a public interest in ensuring that the competitive position of the successful tenderer is not prejudiced. In the particular circumstances of this case, I do not attach significant weight to this factor given the general requirement to publish certain details relating to the total final value of contracts in such tender processes. I am also cognisant of the fact that the combined management fee and percentage reduction offered is not necessarily reflective of what might be offered in similar future tender processes. Accordingly, I am satisfied that the public interest would, on balance, be better served by the release of the total cost figure contained in Records A40 and A41.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the Department's decision to release records A40 and A41 in part.
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.