Case number: OIC-116823-Y1W4F4

Whether the Council was justified in refusing access to invoices submitted by certain contractors in quarter four of 2016 and to associated correspondence between the Council and those contractors under sections 32, 36 and 37 of the FOI Act

 

1 November 2022

 

Background

In a request dated 29 September 2021, the applicant sought access to copies of all invoices submitted to the Council by certain named contractors in quarter four of 2016 and any associated correspondence between the Council and those contractors pertaining to the work referred to in those invoices. In a decision dated 27 October 2021, the Council refused access to the applicant’s request under section 32(1)(a)(i) of the FOI Act on the basis that the records sought are related to matters, which are the subject of an ongoing Garda investigation. It stated, that the release of any such records could prejudice or impair the investigation. The applicant sought an internal review of that decision, following which the Council affirmed its original decision.  On 6 December 2021, the applicant applied to this Office for a review of the Council’s decision.

During the course of the review, the Council informed this Office that it was withdrawing its reliance on section 32 of the FOI Act. However, it contended that the records contain commercially sensitive information and are exempt under section 36(1)(b)/(c) of the FOI Act and parts of the records contain personal information which is exempt under section 37(1) of the FOI Act. This Office informed the applicant of the Council’s revised position and the applicant provided submissions in reply. This Office also notified the contractors of this review and two of the contractors provided submissions objecting to release of the records on grounds of commercial sensitivity.

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 correspondence between the applicant and the Council and to correspondence between this Office and the applicant, the Council and the contractors. I have also had regard to the content of the records that were provided to this Office by the Council for the purposes of this review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the review, the applicant confirmed that he was agreeable to excluding names, mobile phone numbers and contact details of the contractors’ employees from the scope of the review. That information therefore falls outside the scope of this review.

The scope of this review is confined to whether the withheld records are exempt under sections 36(1)(b)/(c) or 37(1) of the FOI Act.

Preliminary Matters

The applicant has raised a number of points in relation to the Council’s treatment of his FOI request, which I wish to address as a preliminary matter. The applicant says after the Council refused his request on the basis that the records related to an “ongoing Garda investigation” he made inquiries with the Garda Press Office and was informed that “Gardaí in Cavan are not aware of any investigations in relation to this matter, at this time.” He says after the Council affirmed its original refusal, he asked for clarification on this point given the “obvious divergence in the positions of An Garda Síochána and the Council”. He says he was informed that, “This matter is ongoing and the Council will not be making any further comment”.

The applicant says that in response to further queries he made during the review, the Garda Press Office stated that, "An Garda Síochána has received correspondence which is currently being assessed to determine what if any Garda action is required." He says during the review the Council stated “The Requester is incorrect and is operating on the basis of misinformation in so far as he asserts that there is no ongoing investigation.” The applicant says in response to further queries he made to the Garda Press Office, he was informed "An Garda Síochána received correspondence in relation to this matter earlier this year. The matters raised in the correspondence were reviewed… and were assessed as not amounting to a potential criminal offence. As such, no investigation is being conducted by Gardaí at this time." He says he was later informed that the Council is no longer claiming that the records are exempt with respect to an on-going investigation.

The applicant says in his view, this chronology raises several questions about how the Council handled his FOI request. First, he says the chronology begs the question as to whether the Council only wrote to An Garda Síochána so as to provide cover to refuse his FOI request. Second, he says the Council must have been informed by An Garda Síochána that there was no investigation, following a review, he questions why the Council did not volunteer this information itself. He contends that FOI Bodies have a duty to be open and honest in their dealings with requesters and the OIC and requesters should not be obligated to try to verify the information they provide with third parties.

I accept the applicant’s contention that requesters should not be obligated to try to verify the information FOI Bodies provide, with third parties. It seems to me, that it was the applicant’s persistence in following up the matter with the Garda Press Office that led to the Council finally confirming that it was no longer relying on section 32 of the Act. In my view, the Council was not forthcoming with information in relation to the status of the investigation, which it said was ongoing throughout the review. I must express my disappointment in the Council's handling of this case.

Analysis and Findings

The Records

The records at issue are invoices submitted to the Council by certain named contractors in quarter four of 2016 and any associated correspondence between the Council and those contractors pertaining to the work referred to in those invoices. The invoices contain the contract type, name of contractor, value, description and date. The goods and services supplied include supply of stone, concrete, tarmacadam, road works, hedge cutting, footpaths and hire of machinery. The associated correspondence contains requests by the Council for fee quotations in respect of works which were to be completed in quarter four of 2016 as well as the responses which were sent to the Council providing the relevant fee quotations.   

Section 36(1) Commercially Sensitive Information

The Council contends that the records at issue are exempt under sections 36(1)(b)/(c) of the FOI Act. Section 36(1) provides that an FOI body shall refuse to grant a request if the record concerned contains:

(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.

 

There are certain situations where, although section 36(1) applies, the request shall still be granted. These situations are specified in section 36(2). Section 36(3) provides that section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request.

In its submissions to this Office, the Council states that the records contain information in relation to pricing, fee quotations and invoices it received from the contractors. It states that, with one exception, all the contractors are trading. It states that it is reasonable to apprehend that information relating to the price charged by each contractor to the FOI body for the conduct of work and the unit prices for material supplied is commercially sensitive information. It states that the disclosure of this information could prejudice the competitive position of the contractors if this material is released into the public domain and falls into the hands of their competitors.

The applicant states that there has been a considerable passage of time since these records were created and he contends that any commercial sensitivity must surely be very diminished. He also states that, as outlined by the Council, one of the contractors is no longer trading. He contends that records which concern this contractor cannot be commercially sensitive as commercial prejudice cannot be caused to a business that has ceased trading.

Two of the contractors provided submissions during the course of the review. The first contractor states that the price of materials it supplies to the Council has not altered significantly since 2016. It states that that due to changes in the local market, it is now competing for business with a large international company. It states that it is operating in a very competitive market and the release of records which show the price paid for the materials it supplied to the Council could damage its competitive position. The second contractor, who provided submissions through its solicitor, also contended that release of the records could prejudice its competitive position or its position in negotiations.

Having regard to the content of the records and the submissions of the parties, I am satisfied that section 36(1)(b) is the relevant exemption provision to consider. 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 standard of proof in relation to the second limb of section 36(1)(b) is very low. All that is required is the possibility of prejudice with the only requirement being that disclosure "could prejudice the competitive position" of the person concerned.

The Supreme Court in University College Cork v The Information Commissioner [2020] IESC 58 confirmed that the standard of proof in relation to the second limb of section 36(1)(b) is “very low”. Nevertheless, it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice its competitive position.

The records at issue are now seven years old. It seems to me that given the passage of time the commercial sensitivity of the records has diminished. On the other hand, I accept that the type of detailed pricing information and the unit prices which are contained in the records is not otherwise available. I also accept that release of the invoices and associated correspondence could give some insight into the contractors pricing strategies and margins which could be used by their competitors in future negotiations or tender competitions. I am satisfied that release of records which relate to the contractors which are trading could prejudice their competitive position. However, I am not satisfied that the release of records which relate to the contractor which has ceased trading are commercially sensitive. It seems to me, that in order for material financial loss to be caused to a business or prejudice to its competitive position or negotiations, that business would still have to be trading. I find therefore, that section 36(1)(b) applies to the invoices and associated correspondence, with the exception of those which relate to the contractor which has ceased trading.

Section 36(2)

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) arise in this case.

Section 36(3) The Public Interest

Having found that section 36(1)(b) of the FOI Act applies in respect of the specific records as set out above, I shall now consider section 36(3) of the FOI Act in respect of those records.  The public interest balancing test in section 36(3) expressly acknowledges the potential for harm arising from the release of a record. Therefore, while release of a record might give rise to one or more of the harms identified in section 36(1) of the FOI Act, this alone does not provide a sufficient basis for concluding that the public interest would be better served by refusing the request. The public interest test involves a balancing exercise between the public interest served by granting the request and the public interest served by refusing it. The FOI body must carry out that balancing exercise, by weighing the competing interests at play in the particular circumstances of a request, and then explain the basis on which it has decided where the balance of the public interest lies.

The applicant contends that the public interest in ensuring openness, transparency and accountability in respect of the expenditure of public monies would best be served by the release of the requested records.

The Council states that the contractors are trading businesses, employers and service providers within the local government area. It states that if the records are disclosed, it is reasonable to expect that there will be publicity in relation to these businesses in connection with previous publicity where this matter was reported to the Gardaí and investigated by the Council. It states that this in turn could be damaging to the contractors’ businesses and the security of employment of their employees. The Council states that the records reveal the pricing and terms on which it is prepared to contract for certain road and maintenance works being carried out. It contends that release of the records could prejudice contractual or other negotiations involving the Council.

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. To summarise, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, with particular regard to the activities and decision making of FOI bodies. However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet judgment), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. It 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.”

The Supreme Court went on to state that the public interest test involves a “weighing of the respective private and public interests in the analysis of the records at issue”. In this regard, it did not disturb the guidance the Court had previously given in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26, in which it noted that a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

In the context of determining whether to grant a request in the public interest, it is important, to consider established public policy in relation to public procurement. The Government’s National Public Procurement Policy Framework, available on the website of the Office of Government Procurement (OGP) at https://ogp.gov.ie/national-public-procurement-policy-framework/, sets out the overarching policy framework for public procurement in Ireland, including the procurement procedures to be followed by Government Departments and State Bodies under national and EU rules. The OGP has published “Public Procurement Guidelines for Goods and Services”. The Guidelines 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”

I note that the contracts in this case were completed in quarter four of 2016, which is after the publication of the Model Publication Scheme in July 2016. In this case, the values listed on the invoices vary. There are invoices which list a single transaction where the value is well in excess of €25,000. There are invoices which list a single transaction where the value is below €1,000 and there are invoices which group smaller transactions together where the total value listed on the invoice is over €25,000. While the Scheme requires publication of certain information where the value of the contract is over €25,000 (exclusive of VAT), it seems to me that the Scheme 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 the contracts entered into by the Council in this case with the contractors. 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 certain elements of a contract, after such time as a contract has been awarded.

As set out above, the invoices contain the contract type, name of contractor, value, description and date. In my view, release of these records by the Council would allow for an insight into what the Council received and the value for money achieved, which is underpinned by a recognised public interest that in my view outweighs the interest served by the operation of the exemption. On this basis, I find that the public interest would be better served by the release of the invoices submitted to the Council by the contractors in quarter four of 2016.

On the other hand, I am not satisfied that the public interest would be better served by the release of the associated correspondence between the Council and the contractors. 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 disclosure of the associated correspondence would open up the contractors to scrutiny in relation to how they organise their business.  I find that the public interest would be better served by refusing access to the associated correspondence to which I have found section 36(1)(b) applies i.e. the associated correspondence with the contractors which are still trading.

Section 37(1) Personal Information

The Council contends that parts of the records are exempt under section 37(1) of the FOI Act. Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to a third party. Section 2 of the FOI Act defines "personal information" as information about an identifiable individual that, either - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to establish that any personal information held by the FOI body concerned relates to the individual.

In its submissions to this Office, the Council states that the records, in particular the associated correspondence contain personal information. It states that this personal information includes: (a) the names, and contact details of employees of third party contractors, including mobile phone numbers; (b) the names and email addresses of employees of the FOI Body; and (c) the role titles of FOI Body employees. The Council contends that this information is exempt under section 37(1) of the FOI Act.

I have examined the records carefully. I am satisfied that there are no names, contact details, or addresses of employees of the Council or the contractors contained in the invoices. I find that the invoices are not exempt under section 37 of the Act. There are names and contact details etc. of employees of the Council or the contractors contained in the associated correspondence. However, as I have found above that the associated correspondence with the contractors which are still trading are exempt under section 36(1) of the Act, it is not necessary to consider whether this correspondence is also exempt under section 37(1) of the FOI Act.

In relation to the remaining correspondence, the applicant has confirmed that he is agreeable to excluding names, mobile phone numbers and contact details of employees of the third party contractors from the scope of the review. The question which I must consider therefore, is whether the Council was justified in refusing access to the names, contact details and role titles of Council employees contained in this correspondence under section 37 of the Act.

Certain information is excluded from the definition of personal information. Section 2 paragraph I provides that personal information does not include - in a case where the individual holds or held office as a director of, a position as a member of staff of or any other office, or any other position, remunerated from public funds in, an FOI Body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.

Having regard to the exclusion to the definition of personal information contained in section 2 paragraph I of the Act, I find that the names, contact details and role titles of Council employees which are contained in the correspondence at issues does not constitute personal information and is not exempt under section 37(1) of the Act. In light of this finding, it is not necessary to consider sections 37(2) or 37(5) of the Act.

In light of the above, I direct release of the invoices at issue and the correspondence with the contractor which has ceased trading with the exception of names, mobile phone numbers and contact details of employees of that contractor contained in the associated correspondence.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council in this case. While I find that it was justified in its decision to refuse access to the correspondence with the contractors who are still trading, I find that it was not justified in refusing access to the remaining correspondence or to the invoices submitted to the Council by the contractors and I direct the release of these records to the applicant.

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.

 

Jim Stokes
Investigator