Case number: 150420
On 24 July 2015, the applicant made a request for access to all records relating to:
The applicant was an unsuccessful tenderer in the process in question. On 25 August 2015, the Hospital notified the other four tenderers of the FOI request. Of the three remaining unsuccessful tenderers, two stated that their entire tender submission was commercially sensitive and should not be released. The successful tenderer identified certain information in its tender submission as being commercially sensitive. On 18 September 2015, the Hospital partially granted the request. It withheld the majority of the records relating to the tender process. On 15 October 2015, the applicant sought an internal review of the decision to refuse access to certain records. In relation to the request for records relating to the tender process, he stated that he was restricting his request for review to the tender for lots 1, 2 and 3. He also expressed his dissatisfaction with the level of information released concerning the letter of complaint. On 9 November 2015, the Hospital affirmed its original decision. On 1 December 2015, the applicant sought a review by this Office of the Hospital's decision.
During the course of the review, Simon Noone of this Office invited the successful tenderer to make a submission on the ground that the release of certain records could affect its interests. The successful tenderer made a brief submission.
In conducting this review, I have had regard to the contents of the relevant records, to the correspondence between the Hospital and the applicant, to the submissions of the successful tenderer, and to the correspondence between this Office and both the applicant and the Hospital on the matter.
There are two separate elements to this request. The Hospital identified seven folders (some comprising several parts) of records as coming within the scope of the first part of the request, i.e. records relating to the tender for lots 1, 2 and 3.
I note at the outset that a number of the records at issue relate solely to the applicant's own tender submission. While it appears that the Hospital did not consider such records for release, they are clearly captured by the scope of the request. While the applicant has given no indication that he requires access to those records, I assume that the Hospital will have no concerns about releasing them in the event that he requires copies. Accordingly, I do not propose to give any further consideration to record 3 in Folder 3, records 5 and 15 in Folder 4B, record 2 in Folder 5A, or record 1 in Folder 5C.
The remaining records to which access was refused are as follows:
Folder 1: Records 1 to 4
Folder 2: Records 2 and 3
Folder 3: Records 1, 2, 4 and 5
Folder 4A: Records 1 to 6
Folder 4B: Records 2 to 4, 6 to 14, 16 and 17
Folder 5A: Records 1, 3 and 4
Folder 5B: Records 1 and 2
In respect of the second element, regarding the letter of complaint, the Hospital argued that it had provided all relevant records. Accordingly, this review is concerned with whether the Hospital was justified in refusing access to the records identified above in relation to the tender process and in refusing access to further records relating to the complaint on the ground that no further records exist or could be found after all reasonable steps to ascertain their whereabouts had been taken.
I wish to state at the outset that I am very disappointed with the submissions made by the Hospital in this case. In my view it took a minimalist approach to addressing issues of relevance. In his letter of 12 February 2016 to the Hospital, Mr Noone of this Office invited the Hospital to provide full reasons as to why it considered certain records to be exempt from release and he outlined some of the issues the Hospital should address to support its decision to refuse access to the records. He also sought further information concerning the applicant's views that he had not received all relevant records in relation to the letter of complaint. The Hospital's response did nothing more than identify the relevant exemptions relied upon and provided no details of the steps taken to locate records relating to the letter of complaint.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the body satisfies the Commissioner that its decision was justified. In the normal course, failure by the body to justify its decision is sufficient for this Office to find that the body had not justified its refusal to release certain records. However, given the nature of the records at issue, I am also cognisant of the fact that the release of many of the records could affect the interests of third parties. Accordingly, while having regard to the provisions of section 22(12)(b) in conducting this review, I have also had regard to the fact that the release of certain records may affect the interests of third parties, as it seems to me that the Hospital's failure to properly engage with this Office should not result in unwarranted adverse consequences for the various third parties.
I would also like to draw attention to two more general preliminary points. Firstly, it should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large.
Secondly, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
The Hospital refused access to all four records in Folder 1, to records 2 and 3 in Folder 2, and to record 1 in Folder 4A under section 15(1)(d). This section provides that an FOI body "may refuse to grant the request where...the information is already in the public domain." The Hospital refused access to the relevant records in Folders 1 and 2 on the ground that they are available on the eTenders website. However, it did not provide any further details as to the accessibility of the relevant records. It did not, for example, provide a relevant link to the relevant part of the eTenders website. Having conducted a search of the eTenders website, I was readily able to identify two of the records withheld from Folder 1, namely record 3 (Final Transport Services ITT and Schedules and record 4 (RFT 88604). I also located a compulsory pricing schedule but it was not clear whether the schedule was the original schedule (record 1) or the revised schedule (record 2). Furthermore, I was not in a position to locate the two records in Folder 2 that were withheld. On the other hand, record 1 in Folder 4A concerns taxi fares and tariffs. I am satisfied that this is publicly available on, inter alia, the taxi regulator's website.
In summary, therefore, while I am satisfied that the Hospital was justified in refusing access to records 3 and 4 from Folder 1 and record 1 from Folder 4A on the ground that they are already in the public domain, I find, having regard to the provisions of section 22(12)(b), that the Hospital has not justified its decision to refuse access to the remaining records in Folders 1 and 2 and I direct it to release these records to the applicant.
Remaining tender process records
The Hospital refused access to the remaining tender process records under sections 35 and 36 of the FOI Act. For reasons which will become clear below, I have considered the records relating to the unsuccessful tenderers separately from the records of the successful tenderer.
Unsuccessful tender records
Records 1, 2, and 5 in Folder 3 comprise the completed tenders of the unsuccessful tenderers. Folder 4 - entitled "Evaluation Material" - is split into two sub folders; Folder 4A "Financial Information" and Folder 4B "Qualitative Information". Records 2 to 5 in Folder 4A comprise completed pricing schedules for all of the tenderers for the various lots. Record 6 comprises the cost scoring sheet for all tenderers. Record 2 in Folder 4B is a slightly different version of record 6 in Folder 4A. Records 3, 4, 7, 9, 10, 12 and 14 comprise qualitative assessments of the various unsuccessful tenderers for the various lots. Records 2, 8, 13, and 17 comprise completed tender scores for all of the tenderers for the various lots. Records 1, 3 and 4 in Folder 5A and records 1 and 2 in Folder 5B comprise letters to unsuccessful tenderers for the various lots.
The Hospital refused access to the records concerned primarily on the ground that they are commercially sensitive, although it also refused access to a number of records on the ground that they were given to the Hospital in confidence.
Section 36 of the FOI Act provides as follows:
"Subject to subsection (2), a head shall refuse to grant an FOI request 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."
Subsection (2) contains a number of exceptions to the exemption. Subsection (3) contains a public interest balancing test.
As the Hospital has indicated, the tenderers provided certain information in support of their application for tender, comprising financial affairs, output, profit margins, pricing structures, product details, expansion plans, marketing strategy, and customer information. It argued that the release of such commercially sensitive information could reasonably be expected to result in a material financial loss or gain to tenderers or could prejudice the competitive position of the tenderers in the conduct of their business (section 36(1)(b) refers).
The only requirement which has to be met in the second part of section 36(1)(b) is that disclosure "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b). All that is required is the possibility of prejudice.
Having examined records 1, 2 and 5 in Folder 3, I am satisfied that the vast majority of the information contained in the records comprises information of a type that may be of use to competitors and as such, that release of the records could prejudice the competitive position of the parties concerned. I accept that some information in the records, of itself, is not commercially sensitive. However, as I have outlined above, the requirement under section 18 to grant partial access to records, where practicable to do so, does not apply if the copy of the record as released would be misleading. I have also explained that being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. In my view, it would not be practicable to release a redacted version of the tender submissions without them being misleading. The redacted versions would contain little or no information that would provide any reasonable indication as to the basis for the evaluation of the tender submissions. Accordingly, I find that section 36(1)(b) applies to those records in their entirety.
The remaining records comprise the Hospital's evaluation of the various tender submissions on both cost and qualitative grounds for the various tender lots, the pricing schedules of the tenderers, and the notifications to the unsuccessful tenderers of the outcome of the tender process with details of their scoring and that of the successful tenderer. I accept that disclosure of the records could prejudice the competitive positions of the unsuccessful tenderers. Furthermore, I do not consider it appropriate to consider whether the evaluations could be released with the identities of the tenderers withheld as I note that the Hospital has already disclosed the identities of the unsuccessful tenderers in its correspondence with the applicant and that there are only three other companies involved. Accordingly, having regard to the provisions of section 18, I find that section 36(1)(b) applies to the records concerned.
However, that is not the end of the matter as section 36(1) is subject to subsection (2) and is also subject to a public interest balancing test as set out in section 36(3). I am satisfied that subsections 2(a), 2(b), 2(c), and 2(e) do not apply. The applicant argues that subsection 2(d) applies. The subsection provides that a body shall grant a request to which section 36(1) applies if the information contained in the record was given to the body by the person to whom the information relates and the person was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public. In his correspondence with the Hospital, the applicant drew attention to section 2.6 of the Request for Tenders which informed tenderers that any records held by the Hospital may be subject to the FOI Act and advised that if a candidate considers that any of the information supplied with its Tender is commercially sensitive or confidential then such information should be identified clearly and the reasons for its commercial sensitivity and/or confidentiality stated.
I am satisfied that this clause in the Request for Tender does not mean that tenderers were informed, prior to submitting their bids, that information contained in the records considered to be commercially sensitive belongs to a class of information that might be made publicly available. I find that section 36(2)(d) does not apply in this case.
On the matter of whether the public interest would, on balance, be better served by granting than by refusing access to the records at issue, as provided for at section 36(3), this Office has previously drawn a distinction between successful and unsuccessful tenderers, particularly in relation to the benefits to be gained from tendering. Where an offer has been rejected, no vendor/purchaser relationship exists, and no public funds are involved. The FOI Act is intended to enhance openness, transparency and accountability of public bodies. I fail to see how the public interest would, on balance, be better served by the release of commercially sensitive information about unsuccessful tenderers who have received no benefits in terms of public funding. I find, therefore, that section 36(3) does not apply and that the Hospital was justified in refusing access to the records relating to the unsuccessful tenderers.
While it is not strictly necessary for me to do so, I would add that I also consider the tender submissions of the unsuccessful tenderers to be exempt from release under section 35(1)(b) of the FOI Act. That section provides for the mandatory refusal of a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. This Office accepts that a breach of an equitable duty of confidence is comprehended by section 35(1)(b) and that the correct tests to apply are set out in the case of Coco v. A. N. Clark (Engineers) Limited  F.S.R 415. The tests require that: (1) the information has the necessary quality of confidence about it; (2) the information was imparted in circumstances imposing an obligation of confidence; (3) there is an unauthorised use of that information to the detriment of the party communicating it. Where a tenderer has been unsuccessful in a tender process, I accept, as a general proposition, that the tenderer would reasonably expect that any commercially sensitive information submitted in support of the bid would remain confidential and that the release of such information would constitute a breach of an equitable duty of confidence.
Successful tender records
The following records contain information relating to the successful tenderer: record 4 in Folder 3, records 2 to 6 in Folder 4A, and records 2, 6, 8, 11, 13, 16 and 17 in Folder 4B. Record 4 in Folder 3 comprises the successful tenderer's submission in response to the request for tenders, together with its full pricing schedule. When notified of the FOI request by the Hospital, the tenderer argued that the following parts of the tender submission were commercially sensitive:
However, in a submission to this Office, the tenderer argued that all of the records at issue are commercially sensitive. The relevant parts of the remaining records (i.e. those parts relating specifically to the successful tenderer), contain specific details of the pricing structure and details of the Hospital's evaluation of the tender submission under the various specified criteria.
Having examined the records, I am satisfied that the records concerned relating to the successful tenderer are, indeed, commercially sensitive and I find, having regard to the provisions of section 18, that section 36(1) applies.
This leaves me to consider, under section 36(3), whether the public interest would, on balance, be better served by the release of the records. In its submission to this Office, the successful tenderer argued that its methodology and method statements are unique to the company, that its pricing is commercially sensitive in an area of business which is carried out by less than 10 operators nationally, and that disclosing its pricing schedule will only serve to empower the applicant's company to mimic its pricing and systems of operation.
In considering where the balance of the public interest lies, I accept that there is a legitimate public interest in persons being able to conduct commercial transactions without fear of suffering commercially as a result. However, there is also a strong public interest in the enhancement of openness, transparency and accountability in public bodies. Indeed, I am conscious that section 11(3) of the FOI Act requires public bodies, in performing functions under the Act, to have regard to, among other things, the need to achieve greater openness in their activities, to promote adherence by them to the principles of transparency in government and public affairs, and to strengthen their accountability.
In my view, this need to enhance openness, transparency and accountability carries even greater weight where the use of public funds is involved and as such, a distinction must be drawn between the commercially sensitive information of unsuccessful tenderers and that of successful tenderers. Arguably, the public interest in enhancing transparency and accountability has been served to some extent by the release of certain information relating to the tender process and the outcome. I note, for example, that a significant amount of information is available relating to the the tender process itself, including the evaluation and scoring methodology. Furthermore, the specific scores of the successful tenderer and its identity has been made available to the applicant. However, this does not mean that the public interest has been sufficiently served by the release of that information and that no further relevant information should be released. Nevertheless, while full disclosure of all records would clearly enhance transparency around the tender process, it seems to me that a balance must be struck between the competing interests. It is noteworthy that the FOI Act is concerned with enhancing accountability and transparency of public bodies, not commercial entities.
Having carefully considered the various records, I find that the public interest would be better served by the release of the information relating to the successful tenderer as follows:
Folder 3, Record 4: The entire record, apart from;
Folder 4A, Records 2 and 3: All information relating to the successful tenderer, apart from;
Folder 4A, Record 4: All information relating to the successful tenderer
Folder 4A, Record 5: All information relating to the successful tenderer apart from;
Folder 4A, Record 6: All information relating to the successful tenderer
Folder 4B, Record 2: All information relating to the successful tenderer
Folder 4B, Record 6: All information relating to the successful tenderer apart from;
Folder 4B, Record 8: All information relating to the successful tenderer apart from;
Folder 4B, Record 11: All information relating to the successful tenderer apart from;
Folder 4B, Record 13: All information relating to the successful tenderer apart from;
Folder 4B, Record 16: All information relating to the successful tenderer apart from;
Folder 4B, Record 17: All information relating to the successful tenderer apart from;
I should add, for completeness, that the information I consider should be released in the public interest is not exempt from release under section 35. That section is concerned with the protection of information given to a public body in confidence. Once a contract has been awarded, the relationship of the Hospital and the successful tenderer becomes one of vendor/purchaser in which there can be no general expectation, in my view, that the overall costs of the details of the service to be provided remain confidential.
The complaint records
On 20 March 2015, the applicant made a complaint to the Hospital about alleged irregularities regarding certain vehicles belonging to a competitor company [...]. In his FOI request, the applicant sought all records concerning this complaint. The Hospital identified 19 pages of documents as being relevant to the request, and released this to the applicant. In the application for internal review, the applicant queried whether all relevant records had been identified and released to him. On internal review, the Hospital affirmed its original decision.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable.
In his request for internal review, the applicant raised a number of queries about records that he believed should exist. The Hospital did not address these queries in its decision, but merely stated "Any documents that were in our possession were provided. There is no further documentation regarding this letter of complaint."
Subsequently, Mr Noone, Investigator, requested the Hospital to address the issues raised by the applicant, and in particular, the contention that there were numerous references to other emails and attachments in the documents released that had not been furnished. He also requested the Hospital to demonstrate that it had taken all reasonable steps to identify all records within the scope of the request. However, in its response, the Hospital failed to address the applicant's queries, and merely asserted, without more, that it had taken all reasonable steps to ascertain whether it held any additional information.
Consequently, I am not satisfied that the Hospital addressed the queries raised by the applicant, in the first instance, and then by Mr Noone, either adequately or at all. I consider that the Hospital has failed to demonstrate that it took all reasonable steps to ensure that it identified and located all records falling within the scope of the request. I find, therefore, that the Hospital was not justified under section 15(a) of the FOI Act in deciding that no further records coming within the scope of the applicant's request exist.
Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Hospital. I direct it to release the following additional records relating to the tender process:
Folder 1: Records 1 and 2
Folder 2: Records 2 and 3
Folder 3: Record 4, apart from;
Folder 4A: All information relating to the successful tenderer in records 2 and 3, apart from;
I further direct the Hospital to undertake a fresh decision making process in respect of the records concerning the complaint.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.