11 December 2009

Request for Information - Total Place Contract

I refer to your email dated 16 October requesting an internal review of the decision by the Department to withhold information relating to the Department's contract with Tribal Group (Tribal) in respect of the Total Place initiative.

Your request

On 22 September 2009 you contacted the Department requesting “a copy of the contract and project budget details in relation to their commissioning of the Total Place Initiative..”;

On 28 September the Department responded to your request indicating that it expected to respond by 20 October;

On 16 October the Department issued a formal response to your request; and

On 16 October, you requested an internal review.

The Department's response

In its response to you the Department stated that the contracts that you requested were subject to “commercial confidentiality” and could not be supplied in full, although it was not explicitly stated it appears the Department was relying on the exception in section 41 (Information provided in confidence) of the Freedom of Information Act 2000(FOIA).

Decision

I have considered your request for an internal review. Section 17 FOIA requires that where a public authority is relying on an exemption to withhold information it must state that fact, indicate the exemption on which it is relying and (if that would not otherwise be apparent) why it applies. I find that the Department did not comply with its duty in this regard.

Although, the Department failed to formally identify the exemption relied upon it is clear to me that the Department had applied the exemption in section 41. I have therefore examined the contract documents to see if the Department would be justified in relying on that exemption.

The contract was formed by a letter dated 4 August 2009 from the Department to Tribal accepting their tender (“the 4 August letter”) and incorporating the following documents:

(a) the Department's form of tender;

(b) conditions of contract for Services under a Framework Agreement;

(c) Tribal's tender document as revised in post tender negotiations;

(d) Specification: and

(e) Price Schedule.

In my view Tribal's tender and the Price Schedule (documents (c) and (e) in the 4 August letter) are subject to the duty of confidence described in section 41 FOIA. I am also of the view that, at the present time, the Department would not be able to successfully establish a public interest defence to an action for breach of confidence. The reasons for this are two fold. These documents contain details of Tribal's proposed methods of working and the rates that they propose to charge, information that would clearly be of value to a competitor at the present time. In my view there is no public interest in the disclosure of this information, such public interest as does exist would relate to the activities that the Department has commissioned Tribal to undertake and the amount that it will be paid for its services. In withholding these documents I am rejecting your appeal.

However, the same considerations do not apply to the other documents referred to in the 4 August letter and I am therefore attaching the Department's form of tender;

conditions of contract for Services under a Framework Agreement and the Specification. The Department's letter of 4 August contains information about the total price of the contract and also contains information relating to the project's key milestones and the payments that would be made. Schedule 1 to that letter contains a breakdown of cost against key milestones, information which is, in my opinion, subject to the same considerations as apply to Tribal's Tender and Price Schedule. I am therefore attaching a version of that letter with that information redacted. In releasing these documents I am accepting your appeal.

In your request for an internal review you referred to the decision of the Information Tribunal in Derry City Council v. ICO that an agreement between two parties does not constitute information provided by one to another.

You will be aware that where section 41 FOIA is engaged it is necessary for the public authority to establish that disclosure would result in an action for breach of confidence. You will also be aware that the public authority may assert a public interest defence to such an action. You will also be aware that the decision in Derry City Council v. ICO was concerned as to whether this defence was available to the Council.

If you are not satisfied with my decision, you may write to the Information Commissioner asking him to decide whether Communities and Local Government has complied with its obligations under the FOI Act and Environmental Information Regulations. You should direct any such appeal to:

Office of the Information Commissioner

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Telephone 01625 545 700

Email [email address]

Yours sincerely,

Bernard Wilson

Deputy Director

Legal, Housing and Land