Request for access to the agenda and minutes of the meetings of Leitrim County Council's management team - whether the provisions of section 26(1) applied to minutes of a meeting at which correspondence between two Ministers of the Government was read out - section 26(2) - whether release of name of person, with whom the Council proposed to enter negotiations regarding the purchase of lands, is personal information about that person - section 28(1) - whether identities of companies which tendered for a housing refurbishment project amount to commercially sensitive information - section 27(1)(b) - public interest - whether information relating to housing applicants is personal information about those applicants - section 28(1)

Case Summary

Facts

The requester sought access to copies of the agenda and minutes of the meetings of the Council's management team. The Council released a number of such minutes and agendas, subject to a number of deletions. The withheld information from one set of minutes was a reference to an extract from correspondence between two Ministers of the Government which was read out to the meeting. The Council claimed that this information was given to it in confidence and that section 26(1)(a) applied. It also withheld the name of a person with whom it was proposing to enter negotiations regarding the purchase of lands on the grounds that it contained matter relating to its deliberative process, and release was contrary to the public interest. It refused to release the identities of companies which had tendered for a housing refurbishment project, on the grounds that the information was commercially sensitive and should not be released until the project was completed. It also refused to release information in other records relating to housing applicants, on the grounds that such information was personal information about them

Decision

The Commissioner's authorised officer referred to section 26(2) of the FOI Act, which provides that the exemptions provided for at sections 26(1)(a) and (b), do not apply to a record prepared by a public body (such as the minutes of a meeting), except where to disclose the information contained therein would constitute a breach of a duty of confidence owed by the public body to the person who gave it that information. He noted that, for the purposes of the FOI Act, Ministers of the Government are the heads of their respective Departments, viz. heads of public bodies, [section 2 of FOI Act]. He found that, even if there was a duty of confidence owed to the Ministers by the Council, a breach of that duty was not encompassed by section 26(2) and thus, the exemptions provided at section 26(1) did not apply. He also commented that, even if it were established that the Ministers in question communicated, not in their Ministerial roles but as public representatives, he felt that disclosure of the material at issue would not constitute a breach of a duty of confidence.

The authorised officer found that the name of the person with whom the Council was proposing to enter negotiations amounted to personal information about that person, and that section 28(1) applied to the information. He also found section 28(1) to apply to details regarding the housing applicants. In both cases, he found that the public interest was not better served by the release of such information to the requester.

As regards the identities of the companies which had tendered for the housing project, the authorised officer noted that the prices tendered in this case had already been released. He also noted that there were three tenderers and the identity of the successful tenderer was likely to be publicly known, as the project was ongoing. He commented that the format of the record concerned was a list of the tender companies, along with their respective tender prices and that the information at issue is the identity of the tenderers along with their respective tender prices, rather than solely the identities of the tenderers.

The authorised officer found that the disclosure of the information concerned could prejudice the competitive position of the parties whose prices were disclosed and that section 27(1)(b) applied. He found that the release of the identities of the unsuccessful tenderers, along with their tender prices, would not better serve the public interest of openness and accountability of government. However, in the case of the successful tenderer, he commented that no evidence had been presented to suggest that disclosure will prejudice the company's competitive position, or that such prejudice was likely to occur. Furthermore, as the project was ongoing, the identity of the successful tenderer was likely to be known already. He commented that there was a significant public interest in, inter alia, ensuring maximum openness in relation to the use of public funds; in ensuring effective oversight of public expenditure and in the prevention of the waste or misuse of public funds. He directed that the tender price and identity of the successful tenderer be disclosed.

Date of Decision: 29.11.2001

Our Reference: 99557

29.11.2001

Mr X

Dear Mr X

I refer to your application to the Information Commissioner for a review of the decision of Leitrim County Council in relation to your Freedom of Information (FOI) request for copies of the agenda and minutes of the meetings of the Council's management team. Your original FOI request in relation to these records was made on 23 September 1999. I have been authorised by the Information Commissioner to conduct this review on his behalf.

Background

I have now completed my review of the Council's decision. In carrying out this review, I have had regard to the following:

• the Council's conclusions on the matter,
• the Council's submissions to this Office,
• your telephone conversation of 23 April 2001 with Mr. Noel Tallon, Investigator,
• your telephone conversation of 8 August 2001 with Ms. Aimée Tallon, Investigator,
• Ms. Tallon's letter to you of 28 August 2001 and,
• the provisions of the FOI Act.

Scope of Review

The Council initially refused your request under section 10(1)(a) of the Freedom of Information Act, 1997 (FOI Act) on the grounds that agendas are not prepared for management team meetings and minutes are not recorded. Following discussions and correspondence with this Office, the Council released the following records to you, subject to a number of deletions:

1. Minutes and agendas for Housing meetings. 2. Minutes and agendas for Sanitary Services meetings. 3. Minutes and agendas for Waste Management meetings.

My review is confined to the issue of whether or not the Council is correct in granting only partial access to a number of records.

Findings

Minutes of Sanitary Services meeting of 10 December 1998

The withheld information in this record is a reference to an extract from correspondence between two Ministers of the Government which was read to the meeting. The Council refused to release the information at paragraph 2.4 of these minutes on the grounds that the information was given in confidence and is exempted under section 26(1)(a). However, section 26(2) provides that the exemptions at section 26(1)(a) and (b) do not to apply to a record which is prepared by a head, a director or a member of the staff of the public body or by a person who is providing a service for a public body under a contract for services in the course of the performance of his or her functions. The one exception to this rule is where the disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than a public body or head or director, or member of staff of a public body or a person who is providing or provided a service for a public body under a contract for service.

In this case, if there were a duty of confidence (and I am not satisfied that there is) it would be owed to one or both of the Ministers in question. Ministers of the Government are, for the purposes of the FOI Act, the heads of their respective Departments, viz. heads of public bodies [section 2 of the FOI Act]. Accordingly, even if there were a duty of confidence owed to these heads, a breach of that duty of confidence is not something which is encompassed by section 26(2) and thus the exemption provided at section 26(1) cannot apply.

Even if it were established that the Ministers in question communicated, not in their Ministerial roles but as public representatives - a scenario which seems highly implausible in the circumstances - I feel certain that disclosure of the material at issue here would not constitute a breach of a duty of confidence. However, given my finding that the reference to the Ministers is a reference to them as heads of their respective Departments, it is not necessary in this decision to deal with the breach of confidence issue.

For the reasons outlined above, I do not consider the withheld part of the record to be exempt under section 26. I have therefore decided to annul the Council's decision insofar as it relates to this record and direct that the withheld information be released.

Minutes of Sanitary Services meeting of 26 April 1999

The Council refused to release the name of a person whom it was proposed to enter into negotiations with regarding the purchase of land on the grounds that the information is exempt under section 20(1). However, I am of the view that section 28 is applicable in this case and that the information is exempt on the grounds that it is personal information about an individual other than the requester. Personal information is defined in the Act as follows:

" information about an identifiable individual that - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends of the individual, or (b) is held by a public body on the understanding that it would be treated as confidential

and, without prejudice to the foregoing, includes - .....(xi) information relating to property of the individual (including the nature of the individual's title to any property)".

The information in this case, being personal information relating to an individual's property, is exempt under section 28(1). Section 28(1) is subject to a public interest test at section 28(5). There would appear to be no basis for releasing the information in the public interest, nor has any case been made to me in this regard. I have therefore decided to affirm the Council's decision insofar as it relates to this record.

Agenda for Housing meeting of 27 May 1999 (document entitled"Proposed refurbishment at Breffni Crescent, Carrick-on-Shannon")

The Council refused to release the identities of companies who tendered for a housing refurbishment project on the grounds that the information is commercially sensitive and should not be revealed until the project is completed. The prices tendered in this case have already been released. There were only three tenderers and the identity of the successful tenderer is likely to be publicly known as the project is ongoing. The format of the record in question is a list of the tender companies along with their respective tender prices. Therefore, given that the prices have already been released, the information at issue is the identity of the tenderers along with their respective tender prices rather than solely the identities of the tenderers.

While not specifically stated, the Council appears to be claiming that the withheld information is exempt under section 27(1)(b). Section 27(1)(b) provides:

" (1) Subject to subsection (2), a head shall refuse to grant a request under section 7 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....."

I consider that the withheld information in this case comes within the description "financial or commercial". However, the essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The subsection protects information whose disclosure:

• could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or
• 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.

In Case No. 98049 the Commissioner found that the price quoted in a tender competition may differ from that quoted to other customers and that knowledge of this could disrupt the company's business relationships with these customers and, perhaps, cause some customers to seek other suppliers. He accepted that the only parties who would suffer in these circumstances would be those whose prices were disclosed, and that competitors who had not tendered would not suffer from the same difficulty. I consider that the same analysis is applicable in this case and that disclosure could prejudice the competitive position of the parties whose prices are disclosed.

Section 27(1)(b) is subject to a public interest test at section 27(3) which provides:

"Subject to section 29, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."

I consider that the release of the identities of the unsuccessful tenderers associated with their tender prices would not enhance the public interest in the openness and accountability of government to an extent sufficient to overcome the countervailing public interest in the protection of commercially sensitive information. However the situation differs in the case of the successful tender. While I accept that disclosure could prejudice the company's competitive position, no evidence has been presented that such prejudice will, or is likely to occur. Further, as previously stated, as the project is ongoing, the identity of the successful tenderer is likely to be publicly known already. I consider that there is a significant public interest in ensuring the maximum openness in relation to the use of public funds. Such openness is a significant aid to ensuring effective oversight of public expenditure, to ensuring the public obtains value for money, to preventing fraud and corruption and to preventing the waste or misuse of public funds. On balance I consider that the public interest in the disclosure of the tender price and identity of the successful tenderer outweighs any prejudice to the competitive position of the company that may result from such disclosure.

I gave consideration to the issue of whether the identities of the unsuccessful tenderers should be released disassociated from their tender prices. However as there were only two unsuccessful tenderers, and as the tender prices have already been released, disclosure would enable, at the very least, each of the unsuccessful tenderers to identify the price tendered by his/her competitor.

I have therefore decided to affirm the decision of the Council insofar as it relates to the identities of the unsuccessful tenderers and annul the decision of the Council insofar as it relates to the identity of the successful tenderer and direct that the name of the successful tenderer be released.

Agendas for the Housing meetings of 27 May (document entitled"Housing Programme 1999 - Progress"), 8 July and 26 August 1999

The Council refused to release certain information in these records on the grounds that the information was personal information and was therefore exempt under section 28(1). Section 28 of the FOI Act provides that a public body shall refuse to grant access to information where access would involve the disclosure of personal information relating to a third party unless it considers that the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates.

The information withheld is personal information in relation to housing applicants, including in some cases information in relation to their property and information held by the Council on the basis that it would be treated as confidential. There would not appear to be grounds for releasing the information in the public interest in accordance with section 28(5), nor has any case been made to me in this regard. In the circumstances, I have decided to affirm the Council's decision insofar as it relates to this record.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby

• affirm the decision of the Council insofar as it relates to

- the minutes of the Sanitary Services meeting of 26 April 1999,

- the agendas for the Housing meetings of 27 May (document entitled "Housing Programme 1999 - Progress"), 8 July and 26 August 1999, and

- the identities of the unsuccessful tenders in the record entitled "Proposed Refurbishment of Dwellings at Breffni Crescent, Carrick-on-Shannon"

• annul the decision of the Council insofar as it relates to

- the minutes of the meeting of 10 December 1998 re. the Sanitary Services Programme, and

- the identity of the successful tenderer in the record entitled "Proposed Refurbishment of Dwellings at Breffni Crescent, Carrick-on-Shannon

and direct that the withheld information be released.

A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Fintan Butler
Senior Investigator