Case number: OIC-104341-G0S9X9

Whether TCD was justified in refusing access to records relating to commercial arrangements with a company which provides guided tours of the University campus under sections 31 and/or 36 of the FOI Act

25 March 2022

Background

This request concerns records relating to commercial arrangements between TCD and a named individual or company, who provides guided tours of the college campus. In 2010, TCD signed a concession agreement with the named individual to provide guided tours of the college campus and in 2015, it signed a similar agreement with the named company. In December 2019, TCD issued a notice on the eTenders website stating that it intended to put the agreement to provide guided tours out to public tender in mid-February 2020. I understand that as a result of the Covid-19 pandemic, TCD suspended guided tours and the tender process has been paused.

In a request dated 2 July 2020, the applicant sought access to:

1. Records showing how much money has been paid to a named individual/company in the last five years by TCD or any documents relating to the financial arrangements with this company.

2. All records from 2016 to date relating to the commercial arrangements with the named company/individual. Please include any internal memos or correspondence relating to the decisions to use this company for TCD tours and any correspondence with the company.

3. All records relating to the decisions on publicly tendering for this tour contract.

In its decision dated 14 August 2020, TCD refused access to the records sought at each parts of the request under sections 36(1)(b) (commercially sensitive information) and 36(1)(c) (information prejudicial to negotiations) of the FOI Act. On 23 October 2020, the applicant wrote to TCD asking whether it had issued a response to his FOI request. On 29 October 2020, TCD replied to say it could not find a record of the decision letter being issued. TCD apologised for this oversight and stated that it would not apply the four-week deadline for seeking an internal review of its decision. The applicant sought an internal review of TCD’s decision on the same day. On 19 November 2020, TCD affirmed its original decision. On 25 February 2021, the applicant applied to this Office for a review of TCD’s decision.

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, to the submissions made by TCD and to submissions made on behalf of the named individual/ company by their solicitor. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

TCD identified seven records (1, 2a, 2b, 2c, 2d, 3c and 3d) that it says fall within the scope of the applicant’s request. It refused access to these records under sections 36(1)(b) and 36(1)(c) of the FOI Act. In its submissions to this Office, TCD also sought to rely on section 31(1)(a) (legal professional privilege) in refusing access to record 3(d). TCD identified two records, which it says do not fall within the scope of the applicant’s request but which were provided to this Office by way of background information i.e. records 3a and 3b. It contends that even if these records were found to fall within the scope of the applicant’s request, they are exempt from release under section 31(1)(a) of the FOI Act. The applicant was notified that TCD’s had also sought to rely on section 31 of the FOI Act and he provided a submission in response.

Record 1 relates to the first part of the applicant’s request and contains information in relation to financial arrangements between TCD and the company over the period 2016 to 2020. Records 2a, 2b and 2c relate to the second part of the applicant’s request and contain commercial agreements between TCD and the company dated 28 April 2010, 30 January 2015 and 1 June 2015. The second part of the applicant’s request is for all records from 2016 to date relating to commercial arrangements with the named company/individual. While records 2a, 2b and 2c relate to the commercial arrangements with the named company/individual, they predate 2016 and I find that they fall outside the scope of the applicant’s request.

Records 3a and 3b contain correspondence between TCD officials and external or internal solicitors. TCD states that they are not records relating to decisions on publicly tendering the tour contract. It states that a decision in relation to publicly tendering for the tour contract would be taken by the University and record 3d reflects this decision. TCD states that as record 3d references legal advice, the legal advice was provided to this Office by way of background information. Part 3 of the applicant’s request was for all records relating to the decisions on publicly tendering the tour contract. I am satisfied that records 3a and 3b do relate to decisions on publicly tendering the tour contract and I find that they fall within the scope of the applicant’s request. Record 3c and 3d both relate to the decision to publicly tender the tour contract and fall within the scope of the applicant’s request.

In light of the above, the scope of this review is confined to whether TCD was justified in refusing access to records 3a, 3b and 3d under section 31(1)(a) of the FOI Act and whether TCD was justified in refusing access to records 1, 2d, 3c and 3d or under section 36(1)(b) or 36(1)(c) of the FOI Act.

Preliminary Matters

Although 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.

It is relevant to note, that the release of information under FOI is accepted to be generally the same as publishing that information to the world at large.

Analysis and Findings

Section 31(1)(a) Legal Professional Privilege

TCD refused access to records 3a, 3b and 3d on the basis that they are exempt under section 31(1)(a) of the FOI Act. Section 31(1)(a) provides for the mandatory refusal of a request if the record sought 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:

(a) 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

(b) 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 or pending litigation (litigation privilege).

It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can 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.

I have considered each of the records to which TCD asserts section 31(1)(a). Record 3a contains a letter from TCD’s external solicitors to TCD staff members which contains legal advice in relation to commercial arrangements. Record 3b contains a string of emails between TCD staff and TCD’s internal and external solicitors which contain requests for and the provision of legal advice in relation to commercial arrangements. Record 3d is a letter from TCD’s acting college solicitor to the company which contains details of legal advice.  I am satisfied that records 3a, 3b and 3d contain legal advice from TCD’s solicitors to the University or detail legal advice received and I find that these are exempt under section 31(1)(a) of the FOI Act on the basis of legal advice privilege.    

Section 36 - Commercially Sensitive Information

TCD refused access to records 1, 2d, 3c and 3d under section 36(1)(b) or 36(1)(c) of the FOI Act. As I have found that record 3d is exempt under section 31(1)(a) of the Act, it is not necessary to consider whether this record is also exempt under section 36(1)(b) or 36(1)(c) of the FOI. Section 36(1) provides a mandatory exemption for commercially sensitive information. It applies to a record containing:

(b) financial, commercial, scientific, or technical or other information the disclosure of which could reasonably be expected to result in a material financial loss or gain to the person to whom it relates or could prejudice the competitive position of that person, or

(c) information the disclosure of which could prejudice the conduct or outcome of negotiations of that person.

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.

Section 36(1)(b) Commercially Sensitive Information

The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm that might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information “could reasonably be expected to result in material financial loss or gain.” The test to be applied in this regard is whether the decision maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information “could prejudice the competitive position” of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). However, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

Section 36(1)(c) Information Prejudicial to Negotiations

Under section 36(1)(c), access to a record must be refused where disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

The applicant’s submissions

The applicant says TCD has been overly restrictive in prohibiting the release of any of the requested records which he says relate to commercial contracts given by a state body without any competitive tender competition. The applicant contends that no great commercial sensitivity can apply to contracts that have expired.

TCD’s submissions

TCD states that record 1, 2d and 3c contain commercial, financial and technical information of the company and the University. It states that making this information publicly available could allow competitors of the company to price cut in future competitions prejudicing the competitive position of the company and causing it material financial loss. TCD also states that the competitive position of the company could be prejudiced in future negotiations for similar contracts as the negotiating position of the company will be made public. Finally, it states that the competitive position of the University to obtain quality services for the best possible price will be prejudiced by making this information publicly available.

The Company’s submissions

The company submits that the release of financial records would place a potential competitor in a position to approach its long-term business clients and undercut its price in the provision of similar services. It states that release of records in relation to commercial arrangements between the company and TCD would give potential competitors a material advantage over the company should it tender for the business in the future. Finally, it states that records concerning the decision to publically tender go to the heart of the commercial relationship between the company and TCD. It states that these records contain commercially sensitive information particularly in circumstances where TCD has proposed a tender in relation to the business and this would give a potential competitor a material advantage over the company should it tender for the business in the future.

Analysis and Findings

Record 1 contains information in relation to financial arrangements between TCD and the company over the period 2016 to 2020. I understand the contention that the release of a record, which shows the financial arrangements agreed between the parties could provide competitors with a material advantage in future tender competitions. Record 1 does not however contain the financial details of the agreement between the parties in relation to the provision of tours. It lists payments for various sums but does not contain any information in relation to what was provided in return for each payment. I am not satisfied that the release of record 1 could give potential competitors a material advantage over the company in future tender competitions, nor could its release prejudice negotiations involving the company or TCD. I find that neither the requirements of sections 36(1)(b) or 36(1)(c) are met in the case of record 1.

Record 2d concerns the second part of the applicant’s request. This record dates from 2019 and relates to the extension of the commercial agreement between TCD and the company by one year. The fact that TCD extended the term of the agreement in 2019 by one year is in the public domain. This record does not contain any of the terms of the agreement, it simply refers to an extension of the agreement. In light of the content of this record and the information already in the public domain, I am not satisfied that the release of record 2d could prejudice the company’s competitive position or could prejudice negotiations involving the company. I find that neither the requirements of sections 36(1)(b) or 36(1)(c) are met in the case of record 2d.

Record 3c is an internal memo of a meeting with the company. This record concerns the intention to put the commercial agreement out to tender having regard to the value of the agreement. It contains details of the timeline for putting the contract out to tender and why the agreement was extended by one year. I note that there have been a number of articles published in national newspapers in relation to the commercial agreement at issue, for example the article available at: https://www.thetimes.co.uk/article/tcd-admits-6-7m-tours-deal-was-not-put-out-for-tender-b0brssq87. In my view, the information contained in record 3c is already in the public domain. I am not satisfied, therefore, that release of records 3c could prejudice the competitive position or negotiations of the company or TCD. I find that neither the requirements of sections 36(1)(b) or 36(1)(c) are met in the case of record 3c.

Given my findings in relation to records 1, 2d and 3c I do not need to consider sections 36(2) or (3). I find that TCD was not justified in refusing access to these records under section 36(1)(b) or 36(1)(c) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary TCD’s decision in this case. I affirm its decision in to refuse access to records 3a, 3b and 3d under section 31(1)(a) of the Act and I annul its decision to refuse access to records 1, 2d and 3c under section 36(1)(b) or (c) of the Act 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 requester 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.

Deirdre McGoldrick

Senior Investigator