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Mr D and the Department of Communications, Energy and Natural Resources (FOI Act 2014)

Case Number: 150403

Whether the Department was justified in its decision to refuse access to certain records concerning the postcode management licence holder tender process

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

Background

On 27 April 2015, the applicant requested access to the Invitation to Participate in Dialogue (ITPD) and the Invitation to Submit Final Tenders (ITSFT) in respect of the process for the appointment of a postcode management licence holder. On 12 October 2015, the Department partially granted the request. On 19 October 2015, the applicant sought an internal review of certain elements of the Department's decision. On 11 November 2015, the Department affirmed its original decision. On 18 November 2015, the applicant sought a review by this Office of the Department's decision.

During the course of this review, Simon Noone, Investigator, notified An Post of the review as an affected party and he invited An Post to make a submission on the release of the relevant records. An Post made a submission on the matter on 23 February 2016.

I have 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 relevant records, to the correspondence between the applicant and the Department as set out above, to the submission of An Post, and to the correspondence between this Office and both the applicant and the Department on the matter.

Scope of the Review

The applicant sought a review in relation to three appendices attached to the ITSFT to which access was refused. While the applicant and the Department used different names and record/appendix numbers at different stages of the process, I note that the applicant raised no issues concerning the records considered by the Department at internal review. Consequently, and also based on the descriptions used by the applicant, I am satisfied that the following records are the subject of this review (I am using the names and record/appendix numbers provided by the Department):

Record 9 Appendix E1 - "An Post Information Pack"
Record 9 Appendix E2 - "Postcode Uptake Sampling"
Record 9 Appendix E4 - "Post-town Based Postcode Approaches"

During the course of the review, An Post confirmed that it had no objection to the release of Appendix E4 or to the release of redacted versions of Appendices E1 and E2, copies of which it forwarded to this Office. Accordingly, this review is not concerned with the information that An Post has agreed to release. Copies of the redacted records will be made available to the Department with this decision for immediate release to the applicant.

Therefore, the scope of this review is concerned with whether the Department's decision to refuse access to the redacted versions of Appendices E1 and E2 was justified.

Preliminary Matters

It should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and thus FOI release is regarded, in effect, as release to the world at large. Additionally, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during 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 record at issue is limited. Furthermore, this review is considered de novo, which means that my decision is made in light of the facts and circumstances as they apply at the date of that decision.

Findings

The Department refused access to the records under section 35 and section 36 of the FOI Act.

Section 35(1) of the FOI Act contains two elements. Section 35(1)(b) provides for the mandatory refusal of a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law. A duty of confidence provided for "otherwise by law" is generally accepted to include a duty of confidence arising in equity. The Commissioner accepts that a breach of an equitable duty of confidence is comprehended by section 35(1)(b).

In the Supreme Court decision in the case of Mahon v Post Publications Ltd[2007] IESC 15, [2007] 3 I.R. 338 Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:

"[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

In considering whether the release of the records at issue would constitute a breach of a duty of confidence, I believe it is necessary to consider how the tender process operated. On 11 March 2014, the Minister for Communications, Energy and Natural Resources provided the following information in response to a parliamentary question in Dáil Éireann:

"The procurement comprised three specific stages. Stage 1 was a pre-qualification process involving the short-listing of candidates for the next stage on their technical capacity and financial and economic standing and this took place in early 2011. Stage 2 was an invitation to submit initial proposals together with a competitive dialogue and this took place in 2011. Stage 3 was the final tender and this took place in June 2013. Three parties qualified following stage 1 of the procurement process."

Stage 2 comprised the ITPD while stage 3 comprised the ITSFT. Appendices E1 and E2 comprise records that were provided by An Post to the Department for distribution to bidders to provide the bidding organisations with information that would assist in the participation of the latter stages of the tendering process. In submissions to this Office, the Department explained that there were five parties in the pre-qualification stage and that the records at issue were not available to the parties at this stage. It explained that of the five parties, only three qualified to participate in competitive dialogue (ITPD) and that all three parties went on to stage 3. The records at issue were made available only to the three parties that proceeded to stage 2.

As part of the tender process, the Department prepared a document entitled "Invitation to Participate in Dialogue (ItPD) for the appointment of a Postcode Management Licence Holder (PMLH)" to enable qualifying candidates to understand and prepare for the dialogue period of the process. The records at issue were included as appendices to this document. Appendix A is described as "Conditions of Dialogue and Initial and Final Tender Submission". Paragraph 8.5 concerns confidentiality and provides as follows:

8.5.1 All documentation, data, statistics, drawings, information, patterns, samples or material disclosed or furnished by the Department to the Participants during the course of this public procurement competition:
8.5.1.1 are furnished for the sole purpose of replying to this ItPD only;
8.5.1.2 may not be used, communicated, reproduced or published for any purpose without the prior written permission of the Department;
8.5.1.3 shall be treated as confidential by the Participant and by any third parties (including sub-contractors) engaged or consulted by the Participant ..."

A separate document prepared in relation to stage 3, entitled "Invitation to Submit Final Tender (ItSFT) for The Appointment of a Postcode Management Licence Holder (PMLH)" contains almost identical confidentiality provisions.

In submissions to this Office, the applicant argued that a genuine duty of confidence does not exist in this instance. He stated that he "considers it highly unlikely that An Post provided data it regarded as financially, commercially, scientifically or technically sensitive to a competitor, at a time when it was still involved in a competitive tender for the development of a national postcode." I disagree. It seems to me that An Post provided copies of the records at issue to An Post for a specific, limited purpose. It argued that they were provided to the Department in confidence. I consider that the contents of the records include detailed, sensitive information about An Post's business operations, including information about its security infrastructure. The records were not made publicly available, nor were they widely distributed.

Having regard to the Department's submission and to the contents of the records identified above in relation to the latter stages of the tender process, I accept that the information in the records at issue has the necessary quality of confidence about it and that it was imparted in circumstances imposing an obligation of confidence. I am also satisfied that the disclosure of the records would comprise an unauthorised use of that information to the detriment of An Post. Consequently, I am satisfied that an equitable duty of confidence exists in respect of the records, and that release of the records would constitute a breach of that duty. Therefore, I find that section 35(1)(b) applies.

Section 35(1)(b) is not subject to the general public interest balancing test under section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence. This Office takes the view that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. In my view, no such public interest grounds arise in this case.

Accordingly, I find that the Department was justified in refusing access to the redacted versions of Appendices E1 and E2

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the Department in this case.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.


Stephen Rafferty
Senior Investigator