Ms X and Galway County Council: Protecting tender information from FOI release

Introduction

On 13 July 2021, the Office of the Information Commissioner in Ireland released its decision in Ms X and Galway County Council[1].  It provides a reminder of the risk to tenderers posed by freedom of information legislation, insofar as this may require all or part of tender related information to be made public.

In order to resist an information request under freedom of information laws, the provider of the information must often show:

• that the content constitutes a trade secret; or
• disclosure would prejudice its competitive position; or
• has been provided in a situation of confidence; or
• is subject to binding legal obligations of confidentiality.

As this case illustrates, this is sometimes an uphill struggle.  Even where a contractor can show that an exemption applies, disclosure may still be ordered if the public interest is considered to outweigh the relevant confidentiality concerns.

Although the decision in relates to the Laws of the Republic of Ireland, it raises matters which should also be of concern to contractors in the UK, given the similarity between Irish and UK statutes on freedom of information.

Background

In May 2015, Galway City Council sought tenders for the hire of duty and standby landfill waste compactors for a period of 36 months commencing in quarter three of 2015.  The tender process was won by a certain plant hire contractor, whose identity was not disclosed in the OIC’s decision.  Ms X (whose identity was also anonymised) is the applicant seeking records from the Council relating to this procurement under Ireland’s Freedom of Information Act 2014 (“FOI”).

The records sought by Ms X contained certain details from the contractor’s tender.  These included a Schedule to its agreement with the Council listing six different options proposed to meet the Council’s needs, together with the contractor’s corresponding hourly rates.  Other requested information included the specifications of the compactor, details of the contractor’s turnover, insurance cover, tax details, health and safety record, experience, safety statement and brochure.

Initially, the Council withheld the request for information on the basis of Section 36(1) of the FOI (trade secrets).  The applicant appealed this decision to the Information Commissioner’s Office pursuant to Section 22.

Was there a trade secret or competitively sensitive information which should be withheld?

Section 36(1) of the FOI provides that a body within the scope of the legislation shall refuse to grant a request if the record concerned contains:

[1] Decision [2021] IEIC OIC-98911 (13 July 2021), available at: https://www.bailii.org/cgi-bin/format.cgi?doc=/ie/cases/IEIC/2021/OIC-98911.html&query=(Ms)+AND+(X)+AND+(v)+AND+(Galway) .