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Mr X and University College Cork (UCC) (FOI Act 2014)

Case Number: 150444

Whether UCC was justified in its decision under the FOI Act to refuse access to records concerning the award of the UCC Tyndall Job Evaluation exercise to PwC

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

On 29 June 2015, the applicant made an FOI request to UCC seeking access to records "From the procurement documentation leading to the award of the UCC Tyndall job evaluation exercise (leading to the report issued on 22nd December 2014) to PwC, all sections pertaining to (i) register of interest (ii) any sections registering either no conflicts of interest or declaration of potential conflicts of interest (iii) sections detailing the approach and/or methodology for the job evaluation exercise."

The context of this is that the job evaluation exercise resulted in a report and recommendations on pay rates for employees within the Tyndall National Institute.

UCC issued a decision on 20 July 2015 granting the request. The applicant responded on 24 July 2015 stating that the documents sent to him could not be construed as those leading to the award of the Tyndall job evaluation exercise. He clarified that he was seeking access to the documents leading to the Tyndall job evaluation exercise and in particular the sections detailing the approach and/or methodology proposed by the successful vendor. He further clarified that he was also seeking access to any declarations or similar of conflict of interest or potential conflict of interest made by the successful vendor. In its letter of 28 July 2015, UCC contended that the original request did not seek documents leading to the award of the Tyndall job evaluation exercise to PwC, it however, agreed to "extend the scope" of the request to include the tender submission. UCC then refused access to the tender submission on the basis of sections 35(1)(a) and 36(1)(b) of the FOI Act. UCC also claimed that there were no conflicts of interests or potential conflicts of interests listed by any of the procurement team or the successful vendor.

The applicant replied stating that he had not requested the "vendor's tender submission" but had only requested the portion of the document relating to the approach and methodology of the procurement documentation. He accepted that no conflicts of interest or potential conflicts of interests were listed by any of the procurement team or by the successful vendor, part (i) and (ii) of his request, but requested an internal review of the decision to refuse access to part (iii) of his request. On 16 November 2015 UCC issued its internal review decision refusing the request on the basis of section 15(1)(a) - records do not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken - as the requester stated that he had not requested the "vendor's tender submission".

The applicant wrote to this Office on 22 December 2015 seeking a review of the decision of UCC. Submissions have been received from the applicant, UCC and PwC, the successful tenderer. I consider that the review should now be finalised by way of a formal, binding decision.

In conducting my review I have had regard to the submissions from the applicant, UCC and PwC. I have also had regards to the correspondence between the applicant and UCC. I have examined the contents of records provided to this Office for the purposes of this review and had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with whether UCC was justified in its decision to refuse access to Section 3 and Appendix G of the tender submission by PwC under sections 35(1)(a) and 36(1)(b) of the FOI Act.

Preliminary Matters

There appears to have been some confusion as to the scope of this review as detailed above. However, it is clear to me, from the request at (iii), that the applicant sought access to sections of the procurement documentation relating to the approach and/or methodology for the job evaluation exercise which are Section 3 - Approach (page 10-12) and Appendix G - Proposed Project Plan and Timetable (page 38-42) of the tender submission. As UCC did not review its decision to refuse access to these records on the basis of sections 35(1)(a) and 36(1)(b), the internal review decision is regarded as a deemed refusal for the purposes of this review.
The applicant submits that the purpose of his request is to reassure himself that the exercise was (i) procured without any conflict of interest and conducted within the standards expected of a public procurement (ii) that the Job Evaluation Exercise was performed per the proposal of the successful tender and as per the agreement at the Labour Relations Court (now Workplace Relations Commission). He contends that there were many anomalies and unusual aspects to the final Job Evaluation Exercise and it would be desirable to ensure that the report was consistent with what the university contracted the successful vendors to execute. Section 13(4) of the Act provides that, in deciding whether to grant or refuse a request, regard shall not be had to any reason that the applicant gives for the request. Therefore, while I note the reasons the applicant is seeking the records at issue, this is not a matter to which I can have regard in this review.

Section 18
I should draw attention to section 18 of the FOI Act which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Burden of Proof
It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on UCC to satisfy the Commissioner that its decision to refuse access to the records was justified.

Analysis and Findings

Section 36 - commercial sensitivity
UCC relied on section 36(1)(b) to refuse access to Section 3 and Appendix G of the tender submission. The exemption provides:

"Subject to subsection (2), a head shall refuse to grant an FOI 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".
However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

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 subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. The Commissioner takes the view that 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 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).

UCC contends that the tender submission document as a whole is commercially sensitive as it has been carefully drafted and compiled by PwC in such a way as to optimise their chance of being selected as the successful tenderer.

According to PwC, section 3 of the tender document sets out the overall structure of the PwC model and identifies factors which are key to its system. It also states that the section identifies the number of meetings/interviews which PwC would typically expect to conduct for an assignment of this type which is an essential part of the pricing of any assignment. Appendix G, it contends, provides an insight into how it makes such a complex assignment simple which is one of the hallmarks of the PwC proprietary job evaluation model.

The view of PwC is that the information in section 3 and Appendix G is its proprietary information, in particular its intellectual property, methodologies and know-how. It states that there is a very real possibility that the disclosure of the information could prejudice the competitive position of PwC vis-ὰ-vis its competitors and other customers of PwC and, if shared, its approach could be adopted by competitors to its disadvantage or utilised by customers without PwC's involvement.

Having examined section 3 and Appendix G of the tender, I am satisfied that the release of some of the details involved could prejudice the competitive position of PwC and is, indeed, commercially sensitive. I accept that it could be argued that some of the material is not of itself particularly sensitive in that a certain amount of information on Job Evaluation Methodology is in the public domain. However, as I have explained 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. I have also explained that being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. In my view, it would not be practicable to release a redacted version of those sections of the tender under review 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 submission.
Therefore, I find, having regard to the provisions of section 18, that section 36(1)(b) applies.

Public Interest

This leaves me to consider, under section 36(3), whether the public interest would, on balance, be better served by the release of the records.

The applicant states that he is employed by UCC and based in the Tyndall National Institute and comes within the scope of the job evaluation exercise. He submits that he wants to reassure himself that the exercise was conducted within the standards expected of a public procurement. The judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 IR. 729, [2011] IESC 26 (the Rotunda judgment) outlined the approach the Commissioner should take when balancing the public interest. Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest.

In considering where the balance of the public interest lies, I accept that there is a legitimate public interest in persons being able to conduct commercial transactions without fear of suffering commercially as a result. However, there is also a 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.

Arguably, the public interest in enhancing transparency and accountability has been served to some extent by the release of certain information relating to the tender process. UCC informed the applicant and this Office that a detailed explanation of PwC's proprietary scoring system was presented verbally to the Tender Evaluation Committee and was not retained by it. Thus, even if I were to accept the applicant's argument that he ought to have access to the records in order to clarify whether the methodology followed was what appeared in the tender, this might not be feasible. I understand that the PwC job evaluation report was made available to all parties. I note that the applicant did not request access to information concerning the tender process itself, the evaluation or scoring methodology although it was, of course, open to him to do so. Nevertheless, while full disclosure of all records would clearly enhance transparency around the tender process, it seems to me that a balance must be struck between the competing interests.

In the circumstances of this case, and having carefully considered the records I find that, on balance, the public interest would not be better served by the release of Section 3 and Appendix G of the PwC tender for job evaluation at Tyndall National Institute, UCC.

As I have found that section 36(1)(b) applies, it is not necessary for me to determine whether the applicant's request also falls to be refused under section 35(1) of the Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of UCC to refuse access to the withheld records identified above on the basis of section 36(1)(b) of the FOI Act.

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.

 

Elizabeth Dolan
Senior Investigator