Project ISAAC Winning Tender

Dear Sir or Madam,

Please can you provide me with a copy of the winning tender from
the Project ISAAC procurement for a shared desktop service. I
believe it was submitted to you by Fujitsu.

I would like to point out to you (in case you were not aware) the
Ministry of Justice Working Assumptions - Procurement Annex A
published on 20 November 2008, specifically page 5 which says that
Tender Information and Information on the Supplier's Approach to
the Work should "generally be disclosed" except for information
agreed as "trade secret".

I am aware that the tender and the ensuing contract had a schedule
in it where the service provider listed any information which they
considered to be commercially sensitive and therefore potentially
exempt from disclosure. In order to allow you to respond quickly, I
confirm my request specifically excludes any information referenced
in that schedule.

As the service provider was specifically required to list any
commercially sensitive material in this schedule, by implication
any and all other parts of the tender are not considered by the
service provider to be commercially sensitive, and as a result it
would be patently wrong for you to refuse this request under a
section 43 exemption.

Yours faithfully,

Richard Greenwood

Dear Sir or Madam,

By Law you are required to respond to Freedom of Information Act
requests within 20 working days. That timespan ran out yesterday.

Please can you provide me with the information I requested without
further delay. Failure to do so will result in me having to request
an Internal Review and, if necessary, referral to the Information
Commissioner.

Yours faithfully,

Richard Greenwood

Dear Sir or Madam,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Cabinet Office's
handling of my FOI request 'Project ISAAC Winning Tender'.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/pr...

Whilst I am generally happy that a significant part of the tender
has been released, I am concerned that your supplier Fujitsu
appears to have decided on what information can be released rather
than the Cabinet Office.

Within the zip file, you have kindly included a letter from Fujitsu
which seems to indicate that the day the request was received, it
was forwarded to Chris Drew at Fujitsu for them to deal with. I
should be most grateful for your comments on why you felt it
appropriate for Fujitsu to do the redaction of the document on your
behalf. Surely it should be the Cabinet Office who reviews the
tender document to decide whether any information is exempt from
release rather than the supplier - please can you indicate where,
within the Freedom of Information Act, there is provision for a
supplier to decide on redactions?

I note from Fujitsu's response of 9 October that they have sent you
an emailed copy of a "suggested" redacted version of the documents.
This seems to suggest that rather than starting from the Cabinet
Office's versions of these documents, you have started from the
supplier's versions. Whilst these may be the same, this does
introduce the possibility that Fujitsu has tampered with the
information before sending it to you (indeed, I believe they have
removed a number of documents from the set, as indicated by the
numbering of the schedules).

I particularly note Fujitsu's comments in their "suggested
response" which they use to justify redacting considerable parts of
the documents. Whilst you have not taken up their kind suggestion
of a response, you do appear to have accepted all the redactions
they have made as a result. I should like to unpick some of their
arguments in their point 3:

a. 'Whilst the MoJ Working Assumptions states that the bidder's
approach ... is generally disclosable except for information that
is agreed to be a "trade secret", the information contained in the
tender document for Project Isaac is the supplier's own unique
approach ... and as it was the winning bid ... this is the
suppliers "trade secret".'

This comment is ridiculous. Every bid made states a supplier's own
unique approach, and so Fujitsu is asserting that winning bids
should never be disclosed. This is clearly at odds with the MoJ
guidance.

b. I believe Fujitsu's argument, particularly making reference to
the Information Tribunal decision, is intended to say that anything
they can now claim to be a "trade secret" is automatically exempted
(under s43(1) of the FOIA). However, they have been selective in
their reading of the decision. In paragraph 52 the Tribunal
indicates that trade secrets are information which is considered to
be *more restricted* than commercially sensitive. My argument (in
point c below) is that the information Fujitsu now seeks to redact
was not considered to be commercially sensitive when submitted to
you, and hence cannot now be considered to be a trade secret.
Fujitsu seems to be saying that they can willy-nilly decide what is
a trade secret, and hence can withhold any information they want
from the documents. This is at odds with the Tribunal decision.

c. Fujitsu notes my assertion that any information not detailed in
Schedule 8 is not commercially sensitive, but disagrees with this
and redacts information they have now decided they do not want to
release. This is at odds with the wording of that Schedule, which
says

"In this Schedule the Parties have sought to identify the Service
Provider's Confidential Information that is believed to be
genuinely commercially sensitive and the disclosure of which would
be contrary to the public interest (i.e. the Commercially Sensitive
Information)."

Indeed, this is more widely drafted than I initially expected, as
it actually details the information which both Fujitsu AND the
Cabinet Office belive to be commercially sensitive (you are both
"the Parties"). The whole purpose of Schedule 8 seems to be that
you will start from a basis of full disclosure, but will give
reasonable consideration to withholding the items listed in the
Schedule.

Within this context, the only information which Fujitsu and the
Cabinet Office agree is potentially commercially sensitive is the
pricing workbook and the financial model.

I therefore cannot understand how Fujitsu now claims that a huge
part of the document which was never considered to be commercially
sensitive before has now become commercially sensitive, and
furthermore why the Cabinet Office is simply accepting this
argument rather than simply telling Fujitsu that they should have
thought about that in April 2007 when they submitted their bid.

I believe that by outsourcing the redaction of the document to
Fujitsu, you have not handled my FOIA request correctly for the
following reasons:

1. You have not used the information held by the Cabinet Office as
the source documents, but have relied upon information sent to you
by Fujitsu (already with redactions). The Act specifically refers
to information held by the public authority, not to information
sent to you in an edited format by a supplier.

2. Some of the documents appear to be missing, again indicating the
danger of asking the supplier to provide you with a response, eg
several CO schedules, a number of contract controlled documents
etc. If these were being deliberately withheld, I would expect you
to say so (and be prepared to justify why) - I suspect they were
omitted by the Cabinet Office because they were omitted in
Fujitsu's mail to you (either due to incompetence or by deliberate
act).

3. Despite your assertion in your letter to me that under s43 you
have (only) withheld information stated as Commercial in Confidence
in Schedule 8 together with information likely to prejudice the
Cabinet Office's commercial interests, and that you have conducted
the required public interest tests on this, you appear actually to
have redacted all of the information Fujitsu has decided not to
release (mainly as a result of their bogus "trade secrets"
argument). I suspect you have done this because it was not the
Cabinet Office which did the redaction, but Fujitsu.

Finally, the Cabinet Office appears to be rewriting the FOIA and
the official guidance on its interpretation. You assert that
releasing any of the information Fujitsu wants to hide (which, I
remind you, was not considered by you or they to be commercially
sensitive when Schedule 8 was incorporated into the contract),
companies in general will be less likely to disclose honestly in
confidential negotiations. Surely what you should be saying to
Fujitsu is that if they considered all of this information to be
commercially sensitive, why did they not reference any of it in
Schedule 8? Are you really suggesting that if you release this
information, Fujitsu or companies in general will not be honest
with the Cabinet Office in future procurements?

I should like the Internal Review to examine:

* why the FOIA request was sent to Fujitsu rather than being
processed by the Cabinet Office

* whether it was appropriate to forward a Freedom of Information
Act request sent by a member of the public to the Cabinet Office to
a third party, and whether this potentially breached Data
Protection Legislation

* what steps the Cabinet Office took to consider each and every
redaction proposed by Fujitsu, particularly where these relied on
their tenuous argument that information was a "trade secret" when
they did not state this in Schedule 8

* what has happened to the missing documents - please can you
review the CABINET OFFICE's COPY of the tender and identify every
document submitted as part of this tender, not just the ones
Fujitsu sent over to you

* whether some of the redacted/missing information can be
reinstated, in particular:
- the Services Catalogue (document missing)
- the Service Architecture Solution (document missing)
- milestone information from Schedule 10
- components of disaster recovery plan from Schedule 13
- whatever has been redacted from page 1 of Schedule 16
- transition plan CCD referred to in Schedule 20 (and any other
CCDs which have gone missing)
- any further information from the CO Proposition Detailed
Information document
- service provider solution information from the CO Proposition
Final document
- redacted information from CO Schedule 10 Detailed Transition
Transformation document (mainly in Section B)
- marketing plan (document missing)

Yours faithfully,

Richard Greenwood