Whether the Society was justified in its decision to refuse access to records relating to a specified tender process under sections 35 and 36 of the FOI Act on the grounds that the records are confidential and/or commercially sensitive

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The company in which the applicant is a partner (company C) was unsuccessful in a tender competition for the provision of public relations services to the Society. The successful tenderer was company E. On 6 October 2016, the applicant made an FOI request to the Society for access to the following records:

-�1. All records, including written documents, reports, memoranda, file notes, correspondence and emails (and any drafts of the foregoing) relating to:
(a) any consideration given by the PSI to the issue of conflicts of interest prior to and during the tender process.
(b) any consideration given by the PSI and/or its evaluation team as to whether company E has any actual or potential conflict of interest in performing the services under the contract, including any disclosures made to PSI by company E in this regard.
 
2. All records, including written documents, reports, memoranda, evaluation/scoring methodologies, file notes, correspondence and emails (and any drafts of the foregoing) relating to PSI-�s evaluation and scoring of:
(a) the company E tender.
(b) the company C tender.
 
3. All records, including written documents, reports, memoranda, evaluation/scoring methodologies, file notes, correspondence and emails (and any drafts of the foregoing) relating to:
(a) company E-�s interview during the tender process. 
(b) company C-�s interview during the tender process.
4. A copy of company E-�s tender responses to award criteria A-D.
 
5. All correspondence and emails and records of any communications with company E in the 12 months prior to and during the tender process (other than clarifications issued to all tenderers as part of the tender process).

6. All correspondence and emails with the PSI Council in relation to the tender process, company C, PR, spending on public relations and public affairs and any reports given by a named staff member in such matters."

On 25 November 2016, the Society decided to partially grant the request. It refused access to information in relation companies other than C and E on the basis that this information falls outside the scope of the applicant-�s request. It also refused access to information contained in scoring sheets (record 33), evaluation documents (records 34, 35, 36), presentations (records 43 and 48) and tender responses (records 44 and 46) on grounds of commercial sensitivity citing section 36(1) of the Act. On 21 December 2016, the applicant sought an internal review of the Society-�s decision. On 16 January 2017, the Society varied its original decision. The Society stated that it had located four additional records which contain feedback forms in which four organisations rated the services provided by companies C and E. The Society refused to release these forms on the basis that the feedback was provided in confidence. The Society's internal reviewer also removed some redactions from the records the subject of the original decision.

On 13 March 2017, the applicant applied to this Office for a review of the Society-�s decision. In correspondence with this Office, the applicant stated that he was limiting the scope of his request to the following issues:

• The non-existence of individual scoring sheets for the tenderers by the assessors;
• Whether the Society has justified its decision to refuse to release information contained in records 33, 34, 35, 36, 43, 44, 46 and 48 on the basis that the information is commercially sensitive and is exempt under sections 36(1)(a) or 36(1)(b) of the Act;
• Whether the Society has justified its decision to refuse to release information contained in additional records 1-4 on the basis that the information is confidential and is exempt under section 35(1) of the Act.

During the course of the review this Office notified company E and the four organisations who provided feedback of the review and invited them to make a submission. Company E and the first two organisations objected to release of what they considered to be confidential and/or commercially sensitive information. Organisations three and four consented to release of their feedback forms and the Society released additional records 3 and 4 to the applicant. The Society also released a further record (additional record 5) which contains the total tender price together with information from record 33 which also contains the total tender price.

I have now decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties and the affected third parties, and to the provisions of the FOI Act 2014.

Scope of the Review

As the applicant requested information relating to companies C and E, information relating to the remaining tenderers falls outside the scope of this review. Record 33 contains scoring sheets which list the scores awarded to each individual tenderer under various criteria. The Society has now released all scores awarded to companies C and E; therefore, the non-existence of individual scoring sheets is not an issue for review. Additional records 3 and 4 have now been released to the applicant in full so that they also fall outside the scope this review. The scope of this review is confined to the following issues:

1. Whether the Society has justified its decision to refuse to release information contained in records 33, 34, 35, 36, 43, 44, 46 and 48 on the basis that the information is commercially sensitive and is exempt under sections 36(1)(a) or 36(1)(b) of the Act;
2. Whether the Society has justified its decision to refuse to release information contained in additional records 1 and 2 on the basis that the information is confidential and is exempt under sections 35(1) of the Act.

Preliminary Matters

Section 13(4) of the Act 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.

Section 18(1) 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 the provisions of section 18 do not 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, this Office is 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.

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. Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Analysis and Findings

Section 36 Commercially Sensitive Information
Section 36(1) provides a mandatory exemption for commercially sensitive information. It applies to a record containing:

-�(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 it 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-�

Section 36(2) contains a number of exceptions to the exemption.

Section 36(3) contains a public interest balancing test.
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 his or her profession or business or otherwise in his or her occupation. 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). The Commissioner takes the view that, in invoking the phrase -�prejudice-�, the specific damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.

The applicant submits that the methodology of delivering public relations services is not a product that is unique to company E. He argues that information in relation to how company E proposes to deliver these services is not commercially sensitive and should be released. The applicant states that the total cost of the tender submitted by company E was released and he argues that information in relation to company E-�s pricing structures should also be released.
The Society submits that the particular strategic approach of company E to the tender process and the innovations which it proposed in its tender could be of use to competitors. It also argues that company E-�s pricing structures are not publically known and release of this information could also be of use to competitors.

Company E submits that information in relation to its strategic approach to meeting the Society-�s requirements would benefit a competitor PR company and it argues that release of its pricing structure could put it at a competitive disadvantage in any subsequent competition.

The Records

Record 33 contains scoring sheets which list the scores awarded to companies C and E under the various award criteria. It also contains further details including detailed pricing information. Records 34 to 36 contain evaluations of the tenders with comments from the evaluation panel. Records 43 contains company E-�s presentation.  Record 48 also contains the presentation with annotations from a member of the evaluation panel that have been released. Records 44 contains company E-�s tender.  Record 46 also contains company E-�s tender with annotations from a member of the evaluation panel. In general, the annotations have been released; however there are a small number of comments contained amongst information that has been withheld on the basis of section 36(1)(b) of the Act.

As 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. In my view, it would not be practicable to release the annotations withheld from record 46 without them being misleading. The redacted version would contain little or no information that would provide any reasonable indication as to the basis for the evaluation of the tender. Having regard to section 18 of the Act, I am satisfied, that it would not be practicable to release the annotations withheld in record 46.

The Society withheld the following information from the above records on the basis of commercial sensitivity:

•  Detailed information in relation to company E-�s current pricing strategy. These details include maximum hourly/daily rate charged by partners, senior consultants, junior consultants and rates for media training. This information is contained at page 4 of the scoring sheets, page 33 of the presentation and in appendix two of the tender.
•  Detailed information in relation to how company E proposes to meet the Society-�s requirements. This information is contained in pages 16-27 of company E-�s presentation, pages 9-18 of company E-�s tender and also in page 2 of records 34 and 35, which contain specific information taken from the tender.
• Company E nominated organisations who could attest to the extent to which it may be relied upon on the basis of previous work carried out for that organisation. The Society released the name and address of the organisations. It withheld details of the extent to which contracts held with these organisations are comparable with the specified requirements of the Society and certain financial details. This information is contained in appendices 4 and 7 of the tender.

It seems to me that the above information could be of use to competitors in a future tender process. I am satisfied that release of this information could therefore prejudice company E's competitive position. I find that this information is exempt on the basis of section 36(1)(b), subject to the provisions of section 36(2) and section 36(3), which I examine below.

The Society withheld pricing information submitted by company C from record 33 (page 3). I am not satisfied that pricing information submitted by the applicant to the Society should be withheld by the Society on the basis of commercial sensitivity and I find accordingly. The Society also withheld comments made by the evaluation panel in relation to company C's tender from record 34 and 35 and comments in relation to company E's tender from record 36.  These comments do not refer to any commercially sensitive information contained in the tenders and are simply comments on the merits of the tenders. I find that section 36(1)(b) does not apply.

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 none of the provisions of section 36(2) apply to the information which I have found to be commercially sensitive.

The Public Interest

On the matter of where the balance of the public interest lies, I accept that there is a legitimate public interest in commercial entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. There is also a public interest in protecting information provided in confidence.

On the other hand, there is 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. It is worth noting, however, that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and it was not generally designed as a means by which the operations of private enterprises were to be opened up to scrutiny.

In this case, the tender, evaluation of tender, presentation and scoring sheets contain details of company E-�s hourly/daily rates, details of how company E proposes to meet the Society's requirements and details of how company E has met similar requirements for other organisations. This information primarily concerns company E itself rather than the operations of the Society and in my opinion, the public interest, on balance, favours the protection of such information. I note that records already released to the applicant disclose the total cost of service in company E-�s tender proposal, the scores awarded to companies C and E in the tender competition and comments from the Society-�s Evaluation Panel. The applicant has also been provided with the names of the organisations who provided feedback in relation to company E. The decision to withhold the feedback itself is addressed below.

I am satisfied that the public interest in openness and transparency has been met to a large extent by material already released to the applicant. I find that, on balance, the public interest would be better served by refusing access to those parts of the scoring, evaluation, presentation and tender documents identified above.

Section 35 -� Confidential Information
Section 35(1)(a) provides a mandatory exemption for certain records containing information given to an FOI body in confidence. A number of conditions must be met in order for the exemption to apply. Section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request (section 35(3)refers). Section 35(1)(b) provides an exemption for records whose disclosure would result in a breach of a duty of confidence provided for by a provision of an agreement, or enactment or otherwise by law.

Additional records 1 and 2 contain feedback forms that the Society sent to two organisations nominated by company E. In the letter which accompanied the request for feedback, the Society stated -�I can assure you that all information provided will be dealt with in the strictest of confidence.-� The Society, company E and both organisations argue that the feedback was provided in confidence and is exempt under section 35(1) of the Act.

Does section 35(2) dis-apply section 35(1) in this case?
As both of the organisations who provided feedback are FOI bodies, section 35(2) is relevant. Section 35(2) provides that the confidentiality exemption at subsection (1) shall not apply to a record which is prepared by a member of staff of an FOI body or a service provider in the course of the performance of his or her functions unless disclosure of the information would constitute a breach of a duty of confidence which is owed to a person other than the FOI body or service provider. Section 2 of the Act defines a service provider as -�a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services.-�

In submissions to this Office, one of the organisations argued that the feedback provided was a personal view of the staff member and it was not provided in the course of the performance of that staff member's functions. In the letter which accompanied the request for feedback, the Society requested the organisations to attest to the extent to which company E may be relied upon on the basis of previous work it carried out on behalf of the organisation. In both cases the feedback was provided by the organisation's communication manager. I am satisfied that the feedback was provided in the course of the performance of the communication manager's role and was not  provided in a personal capacity. The fact that the staff member was under no obligation to provide such feedback or reference is not a relevant consideration. I find that section 35(2) applies to additional records 1 and 2 and these records are not exempt under section 35(1)(a) or 35(1)(b) of the Act.

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the Society-�s decision. I direct the release of the following additional information:

• Record 33: Pricing information submitted by company C (page 3);
• Record 34/35: Evaluation panel comments - company C-�s tender (page 1);
• Record 36: Evaluation panel comments - company E-�s tender (page 3);
• Additional Record 1: Feedback provided in relation to Company E;
• Additional Record 2: Feedback provided in relation to Company E.

I affirm the Society-�s decision to refuse access to the remaining information.

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.

Elizabeth Dolan
Senior Investigator