Case number: OIC-131480-T8C8H5

Whether the Council was justified in refusing access to records relating to the applicant and the position of general manager with a third party service provider on the basis of sections 31(1)(a) and 36(1)(b) of the FOI

 

5 April 2023

 

Background

In a request dated 3 August 2022, the applicant sought access to all records held by the Council relating to a specified employment post with a named third party service provider (the service provider) and relating to his employment in that post. The service provider operates, manages, and maintains three properties on behalf of the Council under a contract for services.

In a decision dated 31 August 2022, the Council part granted the applicant’s request. Of the 19 records it identified as coming within the scope of the request, it released nine records in full, it granted partial access to one record with information redacted under section 36 of the Act, and it refused access to nine records under section 31.

On 4 September 2022, the applicant sought an internal review of the Council’s decision, following which the Council affirmed its original decision. On 18 October 2022, the applicant applied to this Office for a review of the Council’s decision.

During the course of the review and in light of submissions made by the Council, the Investigator notified the service provider of the review and provided it with an opportunity to make submissions. I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant, the Council and the service provider. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

A number of the records identified by the Council reference other attachments. On foot of queries from this Office, the Council said the attachments were considered to fall outside the scope of the request. Having examined them, I am satisfied that the relevant attachments fall outside the scope of the applicant’s request.

The Council refused access to the records at issue, in whole or in part, under sections 36(1)(b) and 31(1)(a) of the Act. In its submissions, the service provider argued that sections 36(1)(a), 35(1)(a) and 37(1) of the FOI Act also apply to the record to which access was granted in part. Given the mandatory nature of these exemptions, I will consider their applicability. The applicant was notified of the new matters raised and submissions were received in respect of same.

Accordingly, this review is concerned solely with whether the Council was justified in refusing access to ten records, in whole or in part, under sections 31(1)(a), 35(1)(a), 36(1)(a), 36(1)(b), and 37(1) of the FOI Act. When referring to the records at issue, I have adopted the numbering system used by the Council in the schedule of records it prepared during its processing of the request.

Preliminary Matters                                                                        

Before I consider the substantive issues arising, I would like to make a number of preliminary comments. First, while I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Second, when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large given that the Act places no restrictions on the type or extent of the subsequent use to which a record released under the Act may be put.

Third, a review by this Office is considered to be “de novo”, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of additional mandatory exemptions, notwithstanding the fact that the provisions were not initially relied upon as a ground for refusing access to the records in the Council’s decisions on the request.

Fourth, section 18(1) of the FOI 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 head of the FOI 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). This Office takes 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, we are not in favour of the cutting or "dissecting" of records to such an extent.

Fifth, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Finally, I note that in his correspondence with this Office the applicant referred to matters relating to the conduct of the Council. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Our role in this case is limited to a consideration of the decision made by the Council on the FOI request.

Analysis and Findings

Section 31(1)(a) – legally privileged information

Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

  • confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
  • confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The Council refused access to records 7 to 14 and record 18 on the basis of legal advice privilege. In support of its position, it noted that a relevant email includes the phrase “Confidential and Subject to Legal Privilege”.

While I am limited in the extent to which I can describe the content of the relevant records, I can say that a number of the records appear to comprise communications whereby legal advice is considered internally. This Office considers that legal privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.

Having carefully examined the records in question, I am satisfied that the information in records 7 to 14 and record 18 is captured by legal advice privilege. I find, therefore, that the Council was justified in refusing access to records 7 to 14 and record 18 under section 31(1)(a) of the Act.

In addition, I am satisfied that the annotations to an attachment to record 5 are also captured by legal advice privilege. Record 5 comprises email correspondence and an attachment. The email correspondence has been released while the attachment has been withheld. The attachment in question is a copy of a contract agreement between the Council and the service provider. The annotations to the record comprise highlighted text and three comments. I am satisfied that these annotations form part of a continuum of correspondence relating to the legal advice received. In my view, the disclosure of the annotations would involve the disclosure of information relating to the nature of legal advice requested and received. Accordingly, I find that the annotations are also exempt from release under section 31(1)(a) of the FOI Act. I will consider the remainder of the record below.

Section 36(1) – commercially sensitive information

The Council withheld the contract agreement attached to record 5 under section 36(1)(b) of the Act. The agreement also includes Schedules A to E and a Confidentiality Agreement. Schedule A contains details of the terms and conditions of the contract as well as text highlighting and comments which I have found to be exempt under section 31(1)(a), as outlined above. Schedule B comprises the specification of requirements. Schedule C contains details of the charges set out by the service provider in its Tender Response Document. Schedule D comprises a copy of the Service Level Agreement (SLA). The SLA includes, in its appendices, details of key performance indicators, and detailed maintenance schedules for the various Council properties. Schedule E comprises property plans. A confidentiality agreement is also appended.

In its submissions to this Office, the service provider said it supports the Council’s decision not to grant access to the record on the basis of section 36(1)(b). It said it was also objecting to the release of the record under section 35(1) (confidential information) and section 37(1) (personal information). It argued that the entirety of the record is exempt from release “by reason of the fact it contains information that is confidential, commercially sensitive and personal”. It further argued that the release of the record would involve the release of its trade secrets. This is, in essence, a claim that section 36(1)(a) also applies.

Section 36(1) of the Act provides for the mandatory refusal of a request if the record concerned contains –

a. trade secrets of a person other than the requester concerned, or

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

In relation to section 36(1)(a), this Office considers that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit widespread publication. We consider that an exact definition of a trade secret is not possible and that some factors to be considered in determining whether information is a trade secret include;

  • the extent to which the information is known outside of the business concerned;
  • the extent to which it is known by employees and others involved in the business;
  • the extent of measures taken by the business to guard the secrecy of the information;
  • the value of the information to the business and to its competitors;
  • the amount of effort or money expended by the business in developing the information;
  • the ease or difficulty with which the information could be properly acquired or duplicated by others.

The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of section 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker’s expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption.  However, this Office takes the view that, in invoking "prejudice", the damage that could occur must be specified with a reasonable degree of clarity.

Submissions

In its submissions, the Council said the record contains “confidential business information between the parties, including but not limited to financial and service level agreements”. It specifically referenced “Schedule C (charges) and attached Service Level Agreement”. It argued that the competitive position of the service provider would be prejudiced by the release of what it described as confidential business information. It further argued that release would enable competitors to gain an advantage in respect of future opportunities of a similar nature and would damage the Council’s ability to negotiate the best possible commercial terms for future such opportunities.

The service provider said the record discloses its strategy, ways of working and financial information. It argued that release would result in a material financial loss and “severely prejudice its ability to compete” in the relevant sector. It highlighted specific information in the record which it said constitutes “trade secrets and/or commercially sensitive information”. It has not made specific arguments in respect of other parts of the record. It referenced Schedules C and D only. It argued that the information contained therein is exempt on the grounds of commercial sensitivity. It said the information discloses key performance indicators and the scope of service provision, as well as charges. It said the information is not in the public domain and was submitted as part of the tender process. It said the information was provided on the basis that it would be protected from disclosure under a relevant confidentiality clause. It said the information has been developed from years of experience and is based on learnings from current and past contracts and participation in tender processes.

The service provider added that disclosure of the information would “erode [its] competitive position and present a real and substantial risk to [its] ability to effectively compete on future tenders, retain existing clients and to [its] business overall”. It said the value of such information to competitors is exceptionally high. It said the information is “current, up to date and insightful” and that release would result in competitors gaining an unfair advantage leaving the service provider in an “entirely uncompetitive position”, less likely to succeed in respect of future bids and retain clients, “leading to a material financial loss of business”. While specifically referencing Schedules C and D, the service provider argued that the entirety of the record is exempt.

Analysis

At the outset, I note that the fact that the service provider was awarded the contract is already information in the public domain. In its submissions, the Council provided this Office with a link to the relevant ETenders webpage, which includes the relevant contract award notice. It also includes documentation in respect of the request for tender, including detailed specifications, a draft services contract and facility management requirements.

Having considered the submissions of the parties and the contents of the record in question, I am satisfied that section 36(1)(b) applies to certain limited information in the record in respect of the services provided and related charges whose release could prejudice the competitive position of the service provider. I am satisfied that section 36(1)(b) applies to the tendered management fee breakdown in the table in Schedule C. I accept that the release of this information could provide competitors with a level of detail which could prejudice the service provider.

In respect of the Service Level Agreement and the appendices, I am satisfied that the SLA and appendix 1 contain information relating to the specific services to be provided by the service provider. I accept that release of this information could provide competitors with an advantage such that the service provider’s competitive position is prejudiced. However, I am not satisfied that the information outlined in appendix 2 could give rise to the relevant harms. This appendix outlines maintenance schedules, the details of which were published as part of the tender documentation available on the relevant ETenders webpage.

Accordingly, I am satisfied that section 36(1)(b) applies to certain information contained in Schedule C (Charges) and the Service Level Agreement (including appendix 1).

I am not satisfied that the release of the remaining information in the record could result in the relevant harms. The initial pages of the contract and Schedule A of the record outlines the terms and conditions of the contract. These reflect standard contract clauses. Indeed, the clauses therein are largely identical to the sample contract available on the relevant ETenders webpage. Schedule B does not contain any specific information in respect of the contract or relevant services being provided. While it references the existence of other documents, these are not within the scope of the request or review. Schedule E comprises property plans which are also available on the relevant ETenders webpage. A confidentiality agreement is appended to the contract. This agreement again contains standard clauses.

Given the nature of the above information, I cannot see how disclosure would prejudice the competitive position of any party. I also note that both parties referenced specific sections of the record in their submissions. Neither the Council nor the service provider made submissions in respect of the remaining information.

Accordingly, I find that section 36(1)(b) of the FOI Act applies to the following information in the record:

  • The table of charges outlined in Schedule C
  • The Service Level Agreement (pages 1-10)
  • Appendix 1 to the Service Level Agreement

I do not need to consider the application of section 36(1)(a) to information which I have found to be exempt under subsection (b). Having carefully reviewed the remaining information, I do not accept that anything therein could be considered a trade secret. I also note that the service provider has not made any submissions in this regard. Accordingly, I find that section 36(1)(a) does not apply to the remaining information in the contract.

As I have found that section 36(1)(b) applies to certain information in the record, I must also consider whether section 36(2) or section 36(3) serve to disapply section 36(1).

Sections 36(2) and 36(3)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.

Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. That section recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.  

The Court also found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request. It stated that “… the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents.”

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.

In its submissions, the Council said it is “obliged to procure the best possible commercial terms when spending public funds”. It said release of the information would prejudice the competitive position of the service provider, enabling competitors to gain an advantage in respect of similar future opportunities and “thereby also damage the ability of Fingal County Council to negotiate the best possible commercial terms for future opportunities of a similar nature”.

The service provider’s position is that the public interest would not be better served by granting the request but would be “actively harmed” on the basis of commercial prejudice. In its submissions, it said release would lead to competitors having an unfair advantage, “contrary to open market competition and competition law rules”, “significantly eroding public confidence in the tender process” and resulting in diminished competition and value for money.

It said release would “damage public confidence in state bodies’ abilities to effectively spend public monies, public confidence in the rules and spirit of competition and public confidence in ensuring commercial sensitivity is protected”. It referenced the Supreme Court decision in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors and said that the public interest in protecting commercial sensitivity is compelling. It said the “collective factors of the public interest in state bodies’ obtaining value for money, fair competition, and protection of commercial sensitivity weigh heavily against releasing the Record in this instance”.

In his application to this Office, the applicant referenced the contract in question and said that access is vital to “ascertain certain facts” in relation to his employment. He did not make any specific arguments in respect of the public interest.

As noted previously, I am required to disregard the applicant’s reasons for making the FOI request except insofar as it can be construed as a public interest. Given the sensitive nature of the issues involved, I will not repeat them in detail here but I confirm that I have had regard to them. I have carefully considered the applicant’s position and have examined the records at issue. In the circumstances, I am bound to treat this as a private, rather than a public, interest.

Release of the relevant information would reveal detail in respect of a contract entered into by a public body, enabling an assessment of same. However, it would also reveal current information about a third party which I have accepted could prejudice commercial interests. I note my finding above that section 36(1)(b) does not apply to certain information within the document.  I further note that high-level information in respect of the awarded contract is available publically. 

In determining whether to grant a request in the public interest, it is important to consider established public policy in relation to public procurement and tender competitions. The Office of Government Procurement (OGP) has produced guidelines to promote best practice and consistency in the application of public procurement rules. The “Public Procurement Guidelines for Goods and Services” provide as follows:

“Bodies subject to Freedom of Information Legislation are required to provide the following details in relation to public procurement under the Model Publication Scheme, published by the Department of Public Expenditure and Reform in July 2016:

  • procurement policies
  • a link to all current tender competitions on the eTenders website
  • public contracts awarded including contract type, contractor, value, award date, duration and brief description (tabular format) over €25,000 (exclusive of VAT) for both ICT and other contracts”.

As noted above, the record in question contains information relating to the management fee tendered by the service provider. This includes detailed annual breakdowns and a “Total Ultimate Cost”. Having considered the Request for Tender (RFT) documentation available online, it appears that the relevant information in the record corresponds to the tendered management fee which is referenced in the Pricing section of the RFT. This information differs considerably from the information published on the ETenders webpage in respect of the total value of the contract. This Office queried this difference with the Council which said that the information detailed in the contract is the amount it agreed to pay to the third party. I cannot comment further on the detail in the ETenders contract information.

It seems to me that the Model Publication Scheme, referenced above, reflects a Government policy of transparency in relation to the value of contracts awarded. In my view, the National Public Procurement Policy is relevant to contracts entered into by the Council, in this case with the relevant third party service provider. While no contract or tender related records are subject to release or exemption on a class basis, it is my view that the Scheme highlights a recognised public interest in the release of certain elements of a contract, after such time as a contract has been awarded.

As noted, the contract agreement attached to record 5 contains an annual fee breakdown and a “Total Ultimate Cost”. In my view, the release of the “Total Ultimate Cost” figure would allow for an insight into the financial and procurement activities of the Council, including in respect of value for money. This is underpinned by a recognised public interest that in my view outweighs the interest served by the operation of the exemption.

I do not believe that the public interest weighs in favour of the release of the more granular annual fee breakdowns included in the table in Schedule C. It is worth stating that as a general principle, the purpose of the FOI Act is to achieve greater openness and accountability in the activities of public bodies. It was not designed as a means by which the operations of private enterprises were to be opened up to similar scrutiny. It seems to me that the disclosure of detailed tendered fee breakdowns and the specifics of services to be provided could reasonably prejudice the competitive position of the third party and that the public interest would be better served by refusing access to such information.

In sum, I find that section 36(3) applies to limited information in respect of the “Total Ultimate Cost” of the management fee in Schedule C. I find that section 36(3) does not apply to the remaining information which I have found 36(1)(b) to apply to.

Section 35(1)(a) – confidential information

In its submissions, the service provider argued that section 35(1)(a) “exempts the entirety of the Record, and without prejudice to the entirety of the foregoing, at minimum, exempts Schedule C and D from release under the Act”. This refers to record five, outlined above. I have already found that certain information in the record is exempt under section 36(1)(b). Accordingly, I will consider the application of section 35(1)(a) to the remaining information in the record, excluding the information which I have found to be exempt as listed above.

Section 35(1)(a) of the FOI Act provides for the protection of information given to an FOI body in confidence. However, section 35(2) provides that subsection (1) does not apply to a record which is prepared by an FOI body or a service provider in the course of his or her functions unless disclosure would constitute a breach of a duty of confidence that is owed to a person other than an FOI body or service provider.

I am satisfied that the record in question was prepared by an FOI body or service provider in the course of their functions. The contract agreement is between the Council and the service provider and is signed by relevant staff from each party. I am aware of no duty of confidence which exists and which is owed to a person other than the FOI body or the service provider. As such, I find that section 35(2) serves to disapply section 35(1) in respect of the record. Accordingly, I find that section 35(1)(a) of the FOI Act does not apply to the remaining information in the attachment to record five.

Section 37(1) – personal information

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing definition.

Certain information is excluded from the definition of personal information. Paragraph II of the definition provides that where the individual is or was a service provider, the definition does not include the name of the individual or information relating to the service or terms of the contract or anything written or recorded in any form by the individual in the course of and for the purpose of the provision of the service. A similar exclusion for staff members of FOI bodies is found at Paragraph I. However, the exclusions to the definition do not exclude all information relating to staff members of FOI bodies or service providers. This Office takes the position that individual staff members are still generally entitled to the right to privacy.

The Council has not sought to rely on section 37(1) in respect of the records. In its submissions, the service provider said granting access to the contract attached to record 5 would involve the disclosure of personal information. It identified specific information in the record which it said comprises personal information. It said the individuals concerned do not consent to its disclosure. The information in question relates to named employees of the service provider.

The applicant’s position is that section 37 does not apply to the records. His submissions in this regard relate to the conduct of the service provider which this Office has no remit to investigate.

Having considered the record and the exclusion to the definition of personal information at Paragraph II, I am satisfied that the exclusion to the definition of personal information does not apply to the names of the individual staff members who represent and/or are employed by the service provider. Accordingly, I find that information relating to named employees of the service provider is personal information within the meaning of the FOI Act. I find that section 37(1) applies.

I am satisfied that none of the exceptions set out in section 37(2) apply and that any public interest in releasing the information does not outweigh the privacy rights of the individuals concerned.

Summary of Findings

In summary, I find that the Council was not justified in refusing access in full to the contract attached to record 5. I find that section 36(1)(b) applies to limited information in the document. I find that it applies to exempt from disclosure the table outlined in Schedule C (Charges) excluding the “Total Ultimate Cost” figure. I find that section 36(1)(b) also applies to the Service Level Agreement (including appendix 1). I direct the release of the remaining information, subject to the removal of annotations exempt under section 31(1)(a) and the redaction of personal information exempt under section 37(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that the Council was justified in refusing access to certain records and information on the basis of sections 31(1)(a), 36(1)(b) and 37(1) of the FOI Act. I find that it was not justified in refusing accessing to certain other information on the basis of sections 35(1)(a), 36(1)(a) and 36(1)(b) and I direct the release of same, subject to the removal of annotations and the redaction of personal information within.  

Right of Appeal

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.

 

Stephen Rafferty
Senior Investigator