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Irish Information Commissioner's Decisions |
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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr X and Department of the Environment, Heritage & Local Government [2007] IEIC 040219 (12 September 2007) URL: http://www.bailii.org/ie/cases/IEIC/2007/040219.html Cite as: [2007] IEIC 40219, [2007] IEIC 040219 |
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Case 040219. Request to the Department of the Environment, Heritage and Local Government for records relating to the procurement of the electronic voting system - whether confidential information - section 26(1) - whether commercially sensitive information - section 27(1) - public interest
The request sought access to various records held by the Department of the Environment, Heritage and Local Government (the Department) concerning the procurement of the electronic voting system. The records withheld included the tenders submitted by four unsuccessful tenderers, and the tender submitted by the successful tenderer, Nedap Powervote, as well as some other records pertaining to all five tenders. The Department refused the records on the grounds that they were exempt under sections 26 and 27 of the FOI Act.
The Commissioner did not accept that, with the passage of time, the proposed prices contained in any of the unsuccessful tenders remained commercially sensitive. She found that the loss of such commercial sensitivity meant that such details no longer retained the necessary confidential quality that would require the Department to protect them on the grounds that section 26 applies. She directed the release of the proposed prices contained in all of the tenders, where the tenderers had not already consented to such release. In so doing, she noted that none of the tenderers had, at the time of submission of their tenders, specified any particular elements of their tenders as being particularly sensitive She directed the release of one unsuccessful tender in full as the relevant tenderer had made no case to her that any of its tender should be withheld; she upheld the refusal of the remainder of the withheld unsuccessful tenderers.
In respect of the Nedap tender, the Commissioner did not accept that there was a mutual understanding of confidence between Nedap and the Department in respect of the contents of the tender; she also did not accept that the tender was provided by Nedap to the Department under circumstances that imposed an obligation of confidence on the Department in respect of it. She accepted that elements of the tender, other than the prices quoted, were commercially sensitive information. However, she considered the public interest to warrant the release of the Nedap tender (and related records) in full, particularly the public interest in allowing the public to assess the value for money that was gained or lost between the point that the Department decided that the Nedap tender was the most appropriate tender submitted, and the signing of the one contract (for hardware) that is in existence. She also considered the public interest in openness in respect of all details and terms upon which money to date has been spent on the software (for which no contract is in existence) to warrant the release of such details as contained in the tender.
Our Reference: 040219
12.09.2007
Mr X
Dear Mr X
I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of the Department of the Environment, Heritage and Local Government (the Department) on your request to it of 4 May 2004, specifically the decision on those records that were the subject of consultation under section 29 of the FOI Act.
Please, again, accept my apologies for the delays that have arisen in dealing with your applications.
On 4 May 2004, you requested the following under the FOI Act:
The Department told you, on 31 May 2004, that it was consulting with a number of parties under section 29 of the FOI Act in respect of some records concerning the tenders submitted. It is the Department's ultimate decision on these records that are the subject of this review.
Those records in relation to which the Department told you it was consulting with various parties under the provisions of section 29 were as follows:
Records 1.22; 1.24; 1.27; 1.28; 1.29; 1.30; 1.31; 1.32; 1.37; 1.39; 1.41; 1.42; 1.43; 1.44; 1.46; 1.47; 1.49; 1.51; 1.54; 1.55; 1.56; 1.57; and 1.58.
On 23 June 2004, the Department told you that, on foot of these consultations, it now considered it should release to you records 1.27; 1.28; 1.29; 1.32; 1.37; 1.39; 1.41; 1.46; 1.47; 1.49 and 1.51. It told you it was withholding the remainder under section 27 of the FOI Act, in that it considered the records to contain commercially sensitive information the release of which was not warranted in the public interest. The records concerned were records 1.22; 1.24; 1.30; 1.31; 1.42; 1.43; 1.44 (which are largely records of queries on the tenders submitted, a response to those queries, and a cost breakdown submitted by one tenderer) and records 1.54 to 1.58 (which comprise the five tender proposals submitted).
On 1 July 2004, you made your application to this Office for a review of the Department's refusal of the 12 records referred to in the preceding sentence.
In conducting my review, I have had regard to the above correspondence and to various correspondence between you and staff of this Office. As in the decision on case 030412, I will refer in this decision only to those arguments that you have made that I consider relevant to this review. I have also had regard to various correspondence between staff of this Office and the Department, and to various contacts between this Office and third parties who submitted tenders in respect of the voting system. I also had brief regard to views expressed by the tenderers on foot of the Department's consultation in 2004, as well as to any views expressed when the tenderers were initially notified (in 2004) of your application to this Office.
I have conducted this review in accordance with the provisions of the Freedom of Information (FOI) Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the FOI Act, 1997 as amended.
On foot of a letter from Ms Anne Moran, Investigator in this Office, dated 22 January 2007, Unilect consented to the release of portions of the tender documentation it had submitted (record 1.55). The Department has released the relevant portions of record 1.55 to you, and they will not be considered by me further in this decision.
Ms Moran's consultation with Indra was delayed due to non-delivery of the letter concerned, albeit the address appears to be correct. However, on foot of email contact, Indra agreed (in July 2007) to the release of its tender (record 1.58) in full, and to details of records containing queries raised by the Department on its tender (page 6 of record 1.22 is relevant here). I understand that the Department has now released both record 1.58 in full, and page 6 of record 1.22, and I do not need to consider these further.
Election Systems and Software (ES&S) did not reply to various letters sent to it by Ms Moran until August 2007, when it consented to the partial release of its tender. The Department has released the relevant portions of record 1.56 to you, and they will not be considered by me further in this decision. ES&S did not explain the reason for the delay in responding to Ms Moran and it should be noted that this decision was not delayed pending a reply; other factors prevented me from concluding this review earlier than now.
I understand that an attachment to the Nedap tender (record 1.54) i.e. the Nedap Annual Report for 1999, has been released to you by the Department. That attachment concerned will not be covered by the scope of my review, accordingly.
In the course of my review, I noted that an analysis of the costings of the two of the unsuccessful tenders, as contained on page 10 of record 1.49, have been withheld, albeit the Department's decision of 23 June 2004 suggested that this record had been released in full. I will deal with the withheld portion of this record in my review, accordingly.
Thus, my review in this case is confined to whether the Department's decision to refuse to release to you the records listed below (a reference to a "record" is to be taken as a reference to any such record that has been withheld in part) is in accordance with the FOI Act:
Ms Moran told you, in her letter to you of 17 April 2007, that my review will not encompass the issue of whether you should have been given access to any other records of relevance to your request of 4 May 2004 (i.e. those records that were not the subject of section 29 consultations), nor will it review the issue of the fee charged to you on foot of your request. As you know, both issues are under review in case 060057.
You will have noted, from documentation already released to you, that seven tenders were received by the Department. However, records concerning five tenders were sent to this Office. The Department has stated to this Office that it only holds records for the five companies whose proposals were fully evaluated, and that it returned the relevant tender documentation to the remaining two companies. I have no reason to doubt the Department's statement in this regard.
For the purposes of this decision, I generally will refer to the winning tenderer (the Nedap-Powervote consortium) as "Nedap".
Section 26(1)(a) of the FOI Act provides that a record shall not be released pursuant to the FOI Act where record containing the information was:
Section 26(1)(b) provides that a request for access to a record shall be refused "if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ...or otherwise by law". In order for an equitable duty of confidence to exist, this Office considers that three conditions must be met, viz.
The Office has adopted the following definition of "confidence" taken from F. Gurry "Breach of Confidence" in Essays in Equity; P. Finn (Ed.); Law Book Company, 1985, (p.111):
"A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose." (please see case No. 98179 - Mr Michael Grange and the Department of Enterprise, Trade and Employment).
Section 26(3) requires the consideration of the public interest in respect of a record to which section 26(1)(a) applies.
Section 27(1) of the FOI Act provides that, subject to subsection (2), a head shall refuse to grant a request for a record if the record concerned contains
"(a) trade secrets of a person other than the requester concerned,
(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, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."
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 provision protects information whose disclosure:
The word "could" in the provision allows for more generous latitude in refusing to grant access on the ground of perceived harm than the word "would". In relation to the second bullet point above, it should be noted that this part of section 27(1)(b) can apply even where such harm is not certain to materialise but might do so. However, in invoking the phrase "prejudice", the damage likely to occur as a result of disclosure of the information sought must be specified with a reasonable degree of clarity.
In the first instance, no argument has been made by the Department, or any of the entities involved, that the format of the tenders provided by them is commercially sensitive information. I note that they follow the required format as set out by the Department in its RFT, and I see no reason to protect the tenders on this basis, accordingly.
I will firstly deal with the Department's position in respect of records concerning the Nedap tender, which is that the records are exempt under sections 26 and 27 of the FOI Act.
Firstly, I note that the Department appears not to have considered the partial release of any of the tenders to you, not even that of the successful tenderer, Nedap. This appears to be on the basis of the Department's view that any material provided by the tenderers was provided in their entirety in confidence, or on the basis that they are entirely comprised of commercially sensitive information. However, previous decisions from this Office have made it clear that each record must be examined on its merits, and, where appropriate, have directed the release of tender documentation in full, and in part.
It would appear that much of the Department's view centres around its perception that the records at issue contain commercially sensitive information that was given in confidence - in other words, the reason why the information is accorded confidential treatment is because it is, at least, perceived to be commercially sensitive information. In general terms, however, the Department's view that section 26 and 27 is applicable to all types of information, that was provided to it in the context of a tender competition that took place seven years ago, is questionable to say the least. The Department's view is all the more disconcerting given that section 10.8 of the Request For Tenders (RFT) makes it clear that release of the information contained in the tenders may be released further to the legal obligation that is the FOI Act.
For its part, Nedap does not consent to the release of any records that affect its interests.
I have accepted, in previous decisions relating to section 26 of the FOI Act, that certain elements of tenders may have had the necessary quality of confidence about them at the time the tender was submitted. I have also found that once a contract is awarded, the relationship between the parties became that of vendor/purchaser, in which there is no general expectation that such elements will be kept secret. For example, I have not accepted that successful tender prices, (as opposed to the method of computing the prices), would be imparted in circumstances imposing an obligation of confidence.
I have also accepted that other successful tender information which is commercially sensitive (for example, details of the internal organisation of a tenderer's business, analyses of the requirements of the public body, or detailed explanations as to how the tenderer proposed to meet these requirements) may remain confidential. Disclosure of such information in the public interest ordinarily would not be required, unless it were necessary to explain the nature of the goods or services purchased by the public body.
Finally, I have also found that unsuccessful tender information which is commercially sensitive generally remains confidential after the award of a contract, and the public interest lies in protecting that information from disclosure.
The Department would appear to be of the view that it gave the tenderers, including Nedap, an unequivocal assurance of confidentiality in respect of the documentation they provided on foot of the RFT.
In its submission to this Office of 28 February 2007, the Department refers to the contents of the RFT in support of its view that section 26 applies to the tender. It submission says that, while Nedap (and certain of the other tenderers) did not specify when submitting the tender submissions that they were sensitive in full or in part, tenderers "would reasonably expect to have the opportunity to submit their views on the content of their tender proposals should the need arise in the context of the FOI Act." The Department said it was "significant that none of the 5 tenderers submitted a statement to the effect that they information they had supplied was not sensitive".
The following is an excerpt from the section of the RFT headed "Introduction":
"The Department undertakes to hold confidential any information provided by tenderers in response to this request subject to the Department's obligations under law, including the Freedom of Information Act, 1997 (No. 13 of 1997). Tenderers are asked to consider if any of the information supplied by them in response to this request should not be disclosed because of its sensitivity. If this is the case, tenderers should, when providing information, identify same and specify reasons for its sensitivity. The Department will consult with tenderers about sensitive information before making a decision on any Freedom of Information request received. If tenderers consider that none of the information supplied by them is sensitive, they should make a statement to that effect. Such information may be released in response to a Freedom of Information request."
Section 10.8 of the RFT says that:
"All responses to this RFT will be treated in confidence and no information contained therein will be communicated to any third party without the written permission of the tenderer, except insofar as ... may be required under Irish and/or European legislation (including Freedom of Information) ...".
Firstly, the RFT's introduction seems to contain somewhat ambiguous references to the need to bring certain types of information to the Department's attention. Silence on the part of a tenderer could be taken as an indication that all of the information contained in the tender is deemed by it to be sensitive, yet at the same time, silence could also be taken as indicating that there is no information within the tender that it considers to be sensitive. The RFT does not refer to any inference that might be drawn from complete silence from a tenderer in this regard.
However, I consider that reading the relevant section of the Introduction, in tandem with section 10.8 thereof, merely serves to assure tenderers that information contained in any tenders submitted to the Department, that has been identified as sensitive, will be treated as confidential until such time as the information is required to be released under the FOI Act or by some other legal means. It also seems to me that the RFT's Introduction was intended to give prospective tenderers not only an opportunity to highlight to the Department those elements of the tenders that were especially contentious and which were being provided in confidence, and, quite importantly, the opportunity to explain why those elements warranted protection. It could also be read as assuring prospective tenderers that the Department will consult with them as to the potential release of sensitive information, in so far as the tenderer highlighted the sensitive elements in the tender and gave reasons as to why they should be protected, in the first instance. However, even if a tenderer had highlighted, upon its submission, those elements of a tender it considered to be sensitive, and provided reasons as to why this was the case, I would not accept that the comments contained in the RFT's Introduction would amount to a right of veto over any possible release of those details on foot of an FOI request.
One way or another, given the ambiguous references in the RFT to the Department's obligations in respect of the FOI Act and how that might impact on its ability to protect the tender documentation from release, I would expect that if any of the tenderers were concerned about the potential impact of release of elements of the tender under FOI, they would have queried this with the Department and alerted it to those elements of the tender (whether in whole or in part) about which they had particular concerns. No evidence of such queries having been made, and concerns assuaged, were provided to me by the Department. It would seem to me that the Department is well aware of its obligations to support its position with relevant evidence, and the fact that such evidence was not looked for by this Office does not negate the fact that the Department did not provide me with any such evidence that may exist, of its own accord.
In so far as section 26(1)(b) is concerned, I do not accept that any of the tenders were submitted in circumstances that imposed a duty of confidence on the Department. All tenderers were free to decide to take part in the process. The submission of a successful tender would result in the tenderers earning many millions of euro in taxpayer monies. In particular, I cannot accept that any of the tenders were submitted on the basis that the Department would be obliged to withhold all details of the tenders concerned.
Accordingly, I do not accept, despite the Department's apparent views on the matter, that the RFT gave a straightforward guarantee to all prospective tenderers that the tenders they submitted would be held by the Department in their entirety on the basis that they were supplied in confidence. This is supported by the fact that the Department itself has released certain details of all the tenders, via other records, released to you.
Given that the FOI Act was over two years old at the time of the tender, I do not accept that the Department was in any position to give such a guarantee, in any event, particularly in the light of the issuing, in April 1998, by the Central Policy Unit (CPU) of the Department of Finance of its Notice No. 9 on FOI & Public Procurement. This notice advises that, "With the advent of the Freedom of Information Act, public bodies will not be able to give guarantees of confidentiality which have previously featured in public procurement." I would also have doubts over any contention that a tender, especially a successful one, was submitted in circumstances that imposed an obligation of confidence on the Department, in the light of this notice, and in the light of the wording of the relevant sections of the RFT.
Returning to the Nedap tender, the key determinant as to whether or not sections 26(1)(a) or (b) apply to it seems to me to revolve around the issue of whether or not there can be said to have been a mutual understanding of confidence between the Department and Nedap in respect of the contents of the tender at the time it was submitted, or whether the information therein was supplied to the Department by Nedap under circumstances that imposed an obligation of confidence on the Department.
The Department's submission 28 February 2007, and its subsequent submission of 14 June 2007, said that the Nedap tender was submitted in confidence and on the understanding that it would have its opportunity to submit views on the content of the tender proposals should the need arise in the context of the FOI Act as set out in the RFT.
However, even if the RFT was intended to provide an absolute guarantee of confidentiality to all tenderers, successful or not, Nedap did not indicate at the time of the submission of the tender that it was being provided in confidence, whether in whole or in part, a fact that has been acknowledged by the Department in its letter to this Office of 28 February 2007. No evidence has been provided to me of Nedap having queried the meaning of the reference to FOI in the RFT, or of any assurances in this regard having been provided to it (whether or not such assurances could have been validly given is another matter).
In response to a letter from Ms Moran of 22 January 2007, Mr Henk Steentjes of Nedap said, on 9 February 2007, that Nedap did not make any statement to the effect that none of its tender contained sensitive information. He said that Nedap feels its "interests are that big that the fact that we did not explicitly indicate what sections should not be disclosed is not a reason for publication."
I do not consider it a reasonable expectation on the part of a successful tenderer that all of the relevant tender would be kept confidential after conclusion of the tender process, particularly in the light of the FOI Act, and in the light of the requirements of openness and transparency in Government expenditure and decision making, in respect of a radical change to the system of voting in Ireland which would involve the expenditure of millions of Euro. Indeed, the RFT made it clear that the information in the tenders was potentially releasable under FOI, and also made it clear that tenderers should not only highlight information that was particularly sensitive, but explain why this was the case. While Nedap's interests may be, at this time, "big", at the time of the submission of the tender it was in the same position as all other tenderers - a candidate for selection. I do not accept that Nedap can rely on the fact that it ultimately became the chosen supplier as a means to negate the fact that, at the time of submission of the tender, it did not highlight any elements thereof that it considered to be sensitive.
Furthermore, while the Department's submission of 28 February 2007 referred to various letters of objection received by it from other tenderers on foot of its section 29 consultation (conducted by it in 2004), it did not refer to an email sent to it by Mr Roy Loudon, on behalf of Nedap (dated 16 June 2004). Mr Loudon was one of the signatories to the contract that was ultimately signed between the Department and Nedap in 2003. The email said that "[s]hould [the Department] have to release copies of correspondence relating to our submission in connection with the tender we request that such release be limited to written correspondence only. This could include letters, proposals and quotations for example. No emails or hand-written notes should be released. These may in places contain commercially sensitive information which should not be placed in the public domain. We do not keep archives of email and cannot guarantee that any records we may have would becomplete."
The Department decided, email from Mr Loudon notwithstanding, not to release the relevant excerpts of the tender. It would seem to me that, despite Nedap's present position that none of the tender should be released, Mr Loudon's email from 2004 further supports the notion that section 26 cannot be said to apply to the tender.
Accordingly, I do not accept that there was a mutual understanding of confidence between Nedap and the Department in respect of the contents of the tender. I also do not accept that the tender was provided by Nedap to the Department under circumstances that imposed an obligation of confidence on the Department in respect of it. This is not undermined by subsequent attempts to claim that the tender was provided in confidence, or by references to "confidential information" in the contract signed between the Department and Nedap in 2003. In so far as the contract (paragraph 12.7 thereof) refers to "confidential information", I note that it does not specify that the tender was deemed to be "confidential information" - and in any event, the contract notes that such "confidential information" is subject to the provisions of the FOI Act.
As an aside, I would question the Department's view that information within the tender, that could be described as "sales-pitch" type information or information that is accessible from the company's website or from other official sources, had been provided to it in confidence, and how it maintains that details of the tender that it has seen fit to quote, or refer to, in other released records should be protected on the grounds that section 26 applies at this point in time.
In other cases, in relation to records concerning the Nedap-Powervote system, you have argued that the records at issue could not contain commercially sensitive information. You have commented in those other cases that the machines and software sold in Ireland are unique to Ireland, and have no market anywhere else. You have also suggested that comments made by the Commission on E-Voting (CEV) in relation to the IES software have reduced its commercial value to zero. It could also be taken from your arguments that details published by the group of hackers in Holland have reduced the commercial value of the Nedap voting machines.
The Department appears to be of the view that information, that may have been commercially sensitive when it was provided seven years ago, remains commercially sensitive to this day. It submits that, in relation to all the tenders, that "[e]lectronic voting machines are designed for a single purpose i.e. to record vote preferences" and "as the technology required to achieve this is rather basic (when compared to a pc, for example, which must perform a multitude of functions and run several simultaneous programmes and software), voting machines tend to be long-lived." The Department cited the example of the 20-year life span of the critical components in the Nedap voting machine. It says that while "election management software, which runs on pcs, can be updated as necessary to enable more complex analysis of the vote data and present results in different ways, the basic function of recording and storing votes will always remain the same". It goes on to say that "[a]ll of these tenderers are still in the market and it is unlikely that more recent tender submissions will differ significantly to those provided in 2000, particularly in terms of hardware and system approaches."
On foot of consultation by Ms Moran on 30 August 2006, Mr Henk Steentjes of Nedap said, on 22 September 2006, that the information in its tender is "still relevant", albeit (at that time) six years old. He said that the voting system lifecycle exceeds a period of 6 to 10 years, and that this is also true to say in respect of the hardware and embedded software that comprise the voting machine. Mr Steentjes said that Nedap could not grant the release of the tender documentation, nor of records of any queries relating to the tender, nor of other documentation, due to the "potential threat for [its] competitive position in the technical, commercial and financial areas." He went on to say that the tender contained details of the prices offered, solutions for the rollout of the project, and details of the project organisation, and that the comprehensive information therein would be of benefit to the company's competitors. Mr Steentjes then made a number of other comments, which I consider to be relevant to the public interest rather than the issue of whether the records are exempt in the first instance.
Mr Steentjes' letter of 9 February 2007 reiterated these comments and referred to Nedap's view that its interests were "that big" the fact that it did not highlight any elements of the tender as sensitive should not be a reason to direct release of the tender at this point in time. He said that although some elements of the tender documentation may seem unimportant, they constitute the company's overall strategic approach to a project such as this.
In the first instance, I consider it relevant that, as discussed earlier, Nedap did not specify that its tender submission, or any part thereof, was provided in confidence or was commercially sensitive. However, the fact that I have accepted, in other related cases, that detailed information concerning the voting machines and associated software would qualify for exemption under section 23 of the FOI Act, leans in favour of my accepting that similar, equally detailed information about the machines and software, if contained in the Nedap-Powervote tender, would be exempt under that provision, and also would be commercially sensitive information that is exempt under section 27(1)(b).
However, it should be noted that no argument has been made, by either the Department or Nedap in their contacts with this Office in relation to this case, that section 23 should be applied to the tender records. In any event, it would seem to me that there is little, if any risk, of such information being used to interfere with the election system and thus, section 23 could not be used to withhold such details from release. Equally, there is no reason for me to find that section 27 applies on this basis.
Notwithstanding that Nedap never made any case that any elements of its tender were commercially sensitive at the time it submitted the tender, I feel it useful to consider section 27 in respect of the following elements of the tender. The first area I will deal with is that of prices. I will then look at whether I accept that details within the tender that deal with the hardware and software may be deemed to be commercially sensitive. In this regard, I note that the Department itself appears to have distinguished between details concerning the election management software, (which it has said "can be updated as necessary") and details concerning "the basic function of recording and storing votes" i.e. the voting machine, which it would appear to contend is less likely to be updated.
As an overview of my approach to date, I have accepted that, insofar as lower tender prices are preferential to the Government, their disclosure could disrupt business relationships with other customers and thus prejudice the competitive position of the successful tenderers. However, given that the "other customers" in this case are also Governments or public authorities, it is not clear to me that this argument stands up in this case. However, assuming that one accepts that the prices are preferential to such other bodies, it would follow that details of successful tenderers' fee structures, including details about what the fees did or did not include, and payment terms should be considered to be commercially sensitive within the meaning of section 27(1)(b). In previous decisions, however, such fee information was nonetheless released in the public interest of openness and transparency in Government decision making and expenditure of monies. In other words, the successful tender information lost confidentiality with respect to the fee rates and other details necessary to understand the nature of services contracted for.
Firstly, I note that the Department has, by releasing other records to you, effectively released excerpts of each tender, (including that of Nedap). In respect of Nedap, records 1.48 and 1.51 have released the total costs put forward as applicable at each stage of the project, and the total costs of all hardware, software, training etc proposed to be supplied. I note that these records refer to these costs in both € or £IR amounts.
The Department's submission to this Office of 14 June 2007, in relation to the Nedap tender, suggests that where tender costs have been released in other records relevant to this request, there is nothing additional to be learned by releasing the figures in the tender itself. I do not agree with this approach. The issue in determining whether an exemption applies is whether or not a specific damage may accrue from the release of particular information.
In so far as section 27 may apply to such information, the prices (and their detailed breakdowns) as contained within the tender are seven years old. According to page 15 of record 1.48, which has been released to you, Nedap confirmed to the Department that "the prices quoted will hold until 2004/5". The following page of record 1.48 also comments on the deterioration in the $/€ exchange rate of 7% at that time (November 2000) and says that the tender prices would have to be increased by that amount after 12 months. Record 1.48 goes on to say that it "is anyone's guess what the position will be in 2001 to 2004" and that "the position could move in Ireland's favour".
Accordingly, I do not accept that the release, in 2007, of details of the prices contained in a seven year old tender, in a situation where the period in which those prices would have "held" expired at least two years ago, and in which fluctuating exchange rates were likely to impact on those prices in the guaranteed period concerned in any event, could result in the disclosure of commercially sensitive information or could impact on Nedap's existing business relationships.
I also do not accept that the release of those excerpts of the Nedap tender, details of which the Department has seen fit to release via other records, could harm Nedap's business interests at this point in time. I have noted some inconsistencies between the prices in those records and the prices within the tender. Ms Moran highlighted some of these inconsistencies to the Department whilst setting out her views that such details should nevertheless be released. The Department did not comment on the inconsistencies to any extent other than to say that "[a]s part of the procurement exercise and leading up to the contract award, the Department engaged with Nedap in the context of the requirements for operation of the system in the Irish context and consequently there will be some variation in the costs quoted at different stages in the process."
Inconsistent or not, I have already explained that I do not accept that seven year old prices can be said to amount to commercially sensitive information, regardless of whether any amendments were made to those prices after the submission of the tender.
For the sake of completeness, I do not accept that such information amounts to the trade secrets of the companies concerned, or is information whose disclosure could have any negative impact on contractual or other negotiations of the person to whom the information relates.
In so far as section 26(1)(a) may ever have applied to the various prices contained within the tender submitted by Nedap (whether the total of individual elements of the project or the total cost of each phase) it seems to me that the release by the Department of records that refer to these amounts or quote them exactly (whether to the nearest Irish pound or the Euro amount) suggests a lack of a mutual understanding of confidence in respect of the exact detail as contained in the relevant excerpt of the tender, even where there are inconsistencies between the prices in the tender and later records.
I have already commented that I do not accept that such information could possibly have been provided under circumstances that imposed a duty of confidence on the Department. Even if there had been, and thus there existed a duty of confidence provided for "otherwise by law" or an equitable duty of confidence between Nedap and the Department in respect of the information at issue, I do not accept that information already released by the Department, which cannot at this point be said to be private or secret information, has the necessary quality of confidence about it that would lead me to conclude that there exists such an equitable duty. It may be argued that the Department owed Nedap a duty of confidence by virtue of section 12.7 of the contract dated 19 December 2003. However, I do not see how any further breaches of such an agreement could take place by the release of excerpts of the tender that pertain to those details thereof the Department has already made public. For the sake of completeness, I am also of the view that the public interest in adding to the understanding as to the manner in which the procurement process was conducted in this case, would warrant the release of these details.
I note that paragraph 1 of Schedule 4 (The Charges and Payment Profile) to the contract signed between Nedap and the Department, dated 19 December 2003, says that "[c]harges for equipment, other than the voting machines, shall be those set out in the Nedap Powervote tender document of 14 August 2000, unless agreed between the parties as set out in paragraph 2 [of Schedule 4]. I also note that Schedule 4, at paragraphs 2 and 3, sets out the contracted cost of the voting machines and the cost of upgrading 1,006 existing machines. Clearly, therefore, it is necessary to refer to the relevant excerpts of the tender documentation to be aware of any charges for equipment other than the voting machines. For example, I am aware that the Department took up the options suggested by Nedap in respect of back up memory and a device to assist the visually impaired in the voting process.
As was found in case No. 98188 (Mr. Mark Henry and the Office of Public Works). "when a contract is awarded, successful tender information loses confidentiality with respect to price and type and quantity of goods supplied". I see no reason, therefore, to find that section 26 could ever have applied to any information in the tender that can throw light on the price to be paid for particular equipment that is not covered by the existing contract. Equally, for the reasons set out above, I could not find that those prices are commercially sensitive within the meaning of section 27 of the FOI Act. In any event, the public interest in openness as to the nature of commitments entered into by the Department, and the public interest in its accountability for the expenditure of public monies, would have weighed heavily in favour of the release of these details.
The Department says that the relevant elements of the Nedap tender contain pricing information that could prejudice Nedap's competitive position in the conduct of its business. It says that prices quoted for individual elements, including the provision of count software, could differ from those quoted to other contemporary clients and could therefore disrupt existing business relationships. The discussion that sections 26 and 27 do not apply to details of prices (whether total prices, or breakdowns of those total prices) in the tender, as discussed in the previous section, encompasses any prices quoted therein for software.
Accordingly, this section of my decision deals with the elements of the tender referring to the details of the software put forward, i.e. what Nedap saw as the system requirements in respect of software, how Nedap considered it could meet those needs in terms of an offering, details of how this would be incorporated in the project management and project rollout, etc.
As of the date of this letter, no contract has been signed in respect of the supply of the IES software. The Department says that it has held off on making a decision on whether to licence or purchase the software, pending programming and testing of the full suite of election profiles to the Department's satisfaction, which has not happened to date. Its letter to this Office of 16 June 2006 (as relevant to case 030412) said that, accordingly, the terms of the tender submission as it related to software development, and the content of the letter of intent to Nedap of 15 December 2000, applied.
The Department says that the tender sets out options with regard to various components of the system, including purchase of the count software, and gives prices for these options. It contends that, as no decision has been made with regard to the whether to licence or purchase the count software, there is nothing to be gained by releasing the portions of the Nedap tender that cover the purchase of the count software. It also says that "[i]t could be argued that to release these portions of the tender could be misleading."
Firstly, the Department has not explained why it contends that to release those elements of the tender that pertain to software "could" be misleading. Accordingly, I have not attached any weight to this comment. Secondly, even if the relevant details had been provided to the Department on the grounds that they should remain confidential in the first instance, it would seem to me that those details lost such confidentiality once the decision was made to proceed with the Nedap tender for the voting system as a whole.
The fact that a contract for the IES software has not been signed, and that a decision has been not made to licence or buy the software outright, does not negate the fact that public monies have been spent on this IES software. It would seem to me that an argument cannot be sustained by the Department to support the notion that any details concerning the software within the tender should be withheld on the grounds that section 26 applies in the light of these facts, and in the light of the finding in case 98188 that "when a contract is awarded, successful tender information loses confidentiality with respect to price and type and quantity of goods supplied". Even if Nedap had taken steps to point out at the time of submission of its tender that such information was in any way contentious, I would not accept that this obliged the Department to keep secret any details on foot of which taxpayer monies was spent.
Under normal circumstances, however, I would accept that this information would be commercially sensitive, and reluctantly, I must do so in this case and find the details to be exempt under section 27(1)(b). However, the public interest must be considered. I will deal with this later in the decision.
The remaining elements of the tender concern the hardware, i.e. details of what Nedap saw as the system requirements in respect of hardware and how it considered it could meet those needs, details of project rollout etc.
A relevant consideration here is the fact that a contract has been signed for the provision of hardware, which also contains details of a project plan and delivery schedule in so far as it applies to this equipment. It would follow that any details in the tender that go beyond the relevant details in the contract could be exempt under section 26, in so far as they would not be necessary to understand the nature of the goods purchased or the terms on which they were contracted to be supplied. I have already signalled that I do not accept that section 26 applies in this case due to the fact that Nedap did not highlight any elements of the tender as being particularly contentious.
However, I can accept that the details concerned, including the understanding by Nedap of the Department's needs, and how it proposed to meet those needs, are exempt under section 27(1)(b) of the FOI Act. Again, however, the public interest in releasing this information must be considered.
Your letter to this Office of 16 August 2004 referred to the decision issued by this Office in Case No. 98188 (Mr. Mark Henry and the Office of Public Works), particularly the comment therein concerning the loss of confidentiality in respects of some elements of tenders, following the award of a contract. You also said, in that letter, that the tender documentation should be released to you, given that the tender price had increased from 25 million pounds to 44 million euro.
You have not made any further arguments to my Office in support of your contention that the public interest warrants the release of the tender documentation. However, you have made several arguments, in other related cases that have been under review in this Office, in support of your contention as to why those records should be released to you in the public interest. I do not intend to deal with each and every comment you have made in the course of these cases, but instead below I have set out those arguments that you appear to have made, which I consider to be of greatest potential relevance to my consideration of the public interest question in this case.
You have commented that the Commission on Electronic Voting (CEV), when it was in existence, had a very limited remit, but that it recommended further testing of the system, and made various recommendations regarding the hardware and software in the system and regarding the security measures employed by the Department. You have contended, in other cases, that particular records should be released so that the integrity of the entire system in its entirety may be assessed. I am taking this as an argument that the release of the records in this case may be warranted in support of the public interest in ensuring that the system, in its entirety, is fit for the purpose for which it was intended.
Following from the previous argument, you also say that a correct balance must be struck between private commercial interests and the public's right to know how its votes are handled. You suggest that the constitutional guarantee of secrecy that we enjoy in Ireland in respect of ballots case makes it impossible for any computer programmer to guarantee that the voter's choice has been recorded correctly. It would appear from your arguments that you may suggest that release of the records at issue is warranted in order to ensure public confidence in the system.
You say that taxpayer money would have been saved if the relevant debates over the system to be chosen had been carried out in public, not in secret. I take this, along with your comments as to the expenditure on the system, as an argument that the relevant records should be released in order to serve the public interests in the Department's accountability for its decisions on the merits of the various proposals considered by the Department in its choice of system, and in ensuring openness in respect of value for taxpayer money spent.
Both myself and my predecessor, Mr Kevin Murphy, have addressed the public interest arguments in favour of and against release of successful tender related information in previous decisions (such as case 98188 that you have referred to above), and Case Number 98049 Henry Ford & Son etc. Cases 030182 and 99183 also dealt with similar issues.
In summary, there is a strong public interest in openness and accountability in the use of public funds. There is also a public interest in the proper administration of public contracts, in ensuring the integrity of public body tender competitions and in ensuring that value for money is obtained in relation to public contracts. Openness in respect of the expenditure of public funds is a significant aid in ensuring effective oversight of public expenditure, in ensuring that the public obtains value for money, and to preventing fraud and corruption and waste or misuse of public funds.
I have already alluded to previous cases in which successful tender information lost any confidentiality owed to the tendering company with regard to fee rates and any other details necessary to understand the nature of services contracted for. Furthermore, while certain information in a tender may not have become part of the contract, and while fees quoted in a tender may not have become the contract price, in which case no "vendor/purchaser" relationship exists in respect of that information, I have found that section 26 may still not necessarily apply.
In attempting to strike the balance between openness on the one hand, and the need to protect commercially sensitive information on the other, I think that it is legitimate to consider two things. In relation to these records, I must consider the positive public interest which is served by disclosure and the second is the harm that might be caused by disclosure. In considering the harm that may be occasioned to Nedap, I accept that in so far as the tender contains information that is still commercially sensitive today, a certain amount of harm may be caused to its business interests.
In respect of your arguments that release of the tender documentation may be required in order to assess the suitability of the system for the purpose for which it was acquired, and for the purpose of ensuring public confidence in that system, it seems to me that the records would not be of great assistance in assessing the system, and would have little impact on public confidence. I find this argument to be of minimal weight in my considerations.
However, an issue that weighs very heavily in support of the release of the elements of the tender that deal with the software is the fact that the contract signed on 19 December 2003 pertains only to the provision of hardware, and that there is no contract in existence pertaining to the software. The Department's letter to this Office of 16 June 2006 (as relevant to case 030412) said that, accordingly, the terms of the tender submission as it related to software development, and the content of the letter of intent to Nedap of 15 December 2000 applied.
As referred to earlier, Mr Henk Steentjes of Nedap, on 22 September 2006, outlined why Nedap considered the tender documentation to be commercially sensitive at this point in time. He also went on to argue that details of the software and hardware could only be understood by IT people, and that the majority of voters would not be in a position to make a judgement on the details in the records concerned. He suggested that the general public could not form an opinion on the adequacy of the voting system by their release. Mr Steentjes then said that, in any event, the opinions of IT experts are divided, that the ensuing contradictory opinions offered undermine voters trust, and suggests that the best way to ensure voters trust is via an accredited test authority.
On 14 September 2006, Mr Anne Hoeflaak of Groenendaal (the actual supplier of the software) said (albeit largely in the context of the release of certain elements of the IES), that independent companies had been appointed by the Department and the CEV to carry out testing of the various elements of the system, the reports of which were in the public domain. It would appear that his contention was that the level of testing conducted to date was sufficient to satisfy the public interest in ensuring that the IES software was adequately tested. It could also be taken from this that he would argue that the level of testing, conducted to date, minimises the public interest in the release of the tender documentation.
I consider these arguments to be irrelevant. Firstly, I do not accept that the general public may not be in a position to understand the details of the tender. As discussed earlier, they contain much more general information than would, for example, records pertaining to source code. This is not to be taken as any acceptance of the notion that a record should be withheld because the majority of people might not understand it, however. Secondly, while there has indeed been testing of the system to date, the CEV has flagged the requirement that further amendments and testing be carried out.
As set out earlier, the revelation of the details of a successful tender may be required in order to understand the nature of the goods and services bought, thus furthering the public interests in ensuring accountability for decisions made by the Department and in ensuring openness in respect of value for taxpayer money spent. It is a fact that public monies have been spent on the IES software - software which the CEV was unable to recommend for use. It is reasonable to assume that more monies will be required to put this software into a format that will meet with the approval of the CEV (or some other appointed body), or should the Government decide to use an alternative IES system, further monies will have to be spent in acquiring that system.
Accordingly, the public interest weighs strongly in favour of revealing all details of, and the terms upon which, the money to date that has been spent on the IES. In this case, this seems to me to require the revelation of any elements of the tender that concern the IES software. It should be noted that, even if I had found section 26 applied to such details, I would find that the public interest would warrant its release.
I would also feel that there is a strong public interest in revealing the details on which the initial decision was made to proceed with the tender in so far as it related to software that was deemed to meet the requirements of the Department, and to allow the public assess the value for money spent to date on it.
A further consideration is the fact that the tender competition concluded at the end of 2000, but that a contract for the supply of the voting machines was not signed until December 2003. Significant amounts of public monies have been spent on an electronic voting system that has yet to be used in a nation-wide election, although my understanding is that the Nedap system comprises the apparatus for use in an Irish electronic voting scenario. I understand that the former Minister for the Environment, Heritage and Local Government has publicly said that the machines will be used at elections and referendums after 2007. Whether this transpires to be the case, or whether the current Minister takes a different view, are immaterial to the decision I must reach.
In respect of the contract for the voting machines, I understand that, further to the General Election Pilot in May 2002, various amendments were required to be made to the machines as set out and offered in the tender, and I am aware that other amendments have been recommended by the CEV. Presumably, therefore, further amounts of taxpayer monies will have to be spent before any such nation-wide roll out.
It could be argued that the fact that the contract for the machines (hardware) is in the public domain satisfies the public interest in accountability for monies spent on the machines, and that it and other released records satisfy the public interest in the Department being accountable for the decisions it made in respect of the electronic voting system.
However, I feel that there is a strong public interest in revealing the details on which the initial decision was made to proceed with the Nedap tender in so far as it related to the hardware, and to allow the public assess the value for money that has been gained or lost between the point that the Department made a decision to proceed with Nedap on the basis of the system so offered, and the signing of the one contract that is in existence. In other words, I feel the public interest warrants the release of the details of the offering in respect of the hardware that was considered to meet the Department's requirements for an electronic voting system.
The tender also contains details of the system requirements, service proposals, timetable, project organisation, training, support, sample contract etc. As I have found that all elements of the tender concerning the hardware and software are to be released, it follows that I find all other elements of the tender should also be released, given that they are integral to the provision of the required software and hardware, and impact on the offering concerned, Thus, there is no need for me to consider them on an individual basis.
In summary, I consider that neither sections 26 nor 27 apply to parts of the Nedap tender, and that the public interest would warrant its release in full in any event.
I note that there are a number of records - 1.22 (page 2) and 1.44, that contain queries on the Nedap tender. I do not accept that the Department owes any duty of confidence to Nedap in respect of these queries. I have doubts that they are exempt under section 27, but in so far as they pertain to the contents of the tender, and in so far as they may be perceived as a negative view taken by the Department on elements thereof, I reluctantly accept that this is the case. However, I consider that the public interest in accountability in terms of the Department's assessment of the tender concerned warrants their release.
Accordingly, I direct that record 1.22 (page 2 thereof) and record 1.44 (in full) be released to you.
In its submission of 28 February 2007, the Department referred to various letters of objection received by it on foot of its section 29 consultation, including one from Indra. That consultation was conducted in 2004.
Regardless of the Department's views on the matter, my reviews are conducted de novo, which requires me to take account of facts and circumstances as they apply as at the date of my decision. It is evident that I consider the age of the tender documentation to be a relevant fact. The proposition that the tenderers may have fewer concerns over the release in 2007 of tenders they had submitted in 2000, than they would have had seven years ago is supported by Indra's consent, in July of this year, to the release of its tender and other related documentation. Following this consent, the Department acknowledged that Indra is best placed to determine what would constitute commercially sensitive information within its tender submission. It should follow that the remaining tenderers are best placed to decide if they wish to make known to this Office any objections they have to the release of any elements of the relevant tender. Accordingly, I have taken the view that there is an onus on the tenderers to make a specific case to my Office to the effect that they, at this point in time, object to the release of the tender documentation.
Ms Moran wrote to each of the tenderers on 22 January 2007 and told them that she considered the tenders fell to be released, with the exception of any personal information therein. She told them that unless she heard otherwise from them within three weeks of that date i.e. by 12 February 2007, she would take it that the tenderers had no objections to the release of the tender documentation concerned. She asked the tenderers to submit any views they may have had to the contrary to my Office in writing/by email, and asked them to confine their view to those elements of the tender that they contended were, as at January 2007, still commercially sensitive.
The letter sent to Indra was returned as undelivered in March of 2007, and having checked that the relevant address was correct, was posted again, only to be again returned in July 2007. Ms Moran then made contact with the company via email, on foot of which Indra consented to the release of its tender (and other records concerning its tender) in full.
I have not been made aware that, at the time of submission of the tender, Sequoia alluded to any elements thereof it considered particularly worthy of protection. It also appears not to have made any objections known to the Department upon consultation in 2004, nor did it reply to this Office's notification of the review (also in 2004). As I found in relation to the Nedap tender, in the absence of any specific objections by Sequoia, I see no reason to accept that its tender was provided to the Department in the understanding that it would remain confidential, or that it was provided to the Department in circumstances that imposed an obligation of confidence on the Department in respect of it.
While, on foot of Ms Moran's letter of 22 January 2007, Sequoia sought further time to assess the contents of the tender (and indeed sought, and was provided with, a copy of the tender at issue), it ultimately replied to Ms Moran that she may "proceed as [she saw] fit".
As explained, I consider that the Department's views in respect of the continued withholding of the records must be supported by the stance taken by the tenderers concerned. It is a fact that Sequoia has neither identified to this Office any elements of the tender that it still considers should warrant protection, nor has it highlighted any elements thereof the release of which it objects to.
Thus, I consider that Sequoia has effectively not objected to the release of the tender documentation concerned. I am also satisfied, from the silence from Sequoia on the matter, that there are no elements of its tender that are, at this point in time, commercially sensitive and which warrant protection under section 27 of the FOI Act.
Therefore, I find that the tender submitted to the Department by Sequoia should be released to you, with the exception of the section therein (Appendix C) that pertains to the resumés of Sequoia staff. I consider this excerpt to be exempt under section 28(1) in that it contains the personal information of the individuals concerned, and that there is no public interest to be served by the release of this information. I also note that record 1.42 appears to be relevant to this tender, in that it is comprised of various costs put forward by Sequoia as relevant to expenditure on hardware, software etc at each phase of the project. I find that it falls to be released for the same reasons as led to the release of the Sequoia tender. That element of record 1.49 that pertains to the costs set out in the Sequoia tender falls to be released similarly.
As noted, Unilect agreed to the release of portions of its tender, which it said may "be released from confidentiality". However, it said that the remaining elements of the tender comprises details of codes and software that the company still uses, and that to release such information would prejudice its current U.S Federal Security Rating. It also said that it would "prefer any financial and pricing information to also remain confidential."
The Department's submission of 28 February 2007 refers to the cover letter that accompanied the Unilect proposal, which says that
" ... the information in this document is quite confidential and should not be seen by anyone outside of your investigation group."
It would appear that the letter sent to the Department by Unilect indicates that it considered all of its tender to be provided in confidence. I have already questioned whether the Department was in a position to assure the tenderers of confidentiality as at the time of the submission of the tenders, and as explained earlier, I do not accept that it was in a position to give such a guarantee. Similar to the other tenderers, Unilect did not give any details at the time of submission of the tender as to why it was "quite confidential".
In any event, the Department has, through the release of records 1.49, 1.51 and 3.10 , released details of the total price put forward by Unilect. As a result of this, I see no reason to accept that there was a mutual understanding of confidence that the tender would be treated as confidential in its entirety, or that the Department was obliged to keep the entire contents thereof confidential. I also cannot accept that the release of the total figure from the tender, that has been quoted, or referred to, by the Department in other released records, can amount to the disclosure of commercially sensitive information.
I note that page 2, and pages 11-14 of booklet one of the Unilect tender (the tender having been supplied to this Office in two booklets) comprises a breakdown of the price quoted to the Department (the pages have been released subject to the redaction of the relevant prices). I also consider that no argument can be made that the release of these pages of the Unilect tender amounts to the release of commercially sensitive information. For one thing, the prices quoted are seven years old, and according to the released elements of the tender, were for a set period of one year and were subject to $/€ exchange rate fluctuations. Accordingly, I do not find that section 27 applies. I am also not satisfied that the information as to a breakdown of prices quoted by Unilect retains a necessary confidential quality that would require the Department to protect it on the grounds that section 26 applies. That element of record 1.49 that pertains to the costs set out in the Unilect tender falls to be released similarly.
I can accept, however, in a situation where a customer/vendor relationship did not materialise, that there is a mutual understanding of confidence in respect of the remainder of the tender, and that the details thereof also comprise commercially sensitive information about Unilect, in the light of its comments about the impact their release would have on its current U.S Federal Security Rating.
I see no public interest in the release of the remaining information. The tender was unsuccessful, and no public monies were spent purchasing the Unilect offering. I see no public interest in assessing whether or not the Unilect system, as described in the tender, would be suitable for Irish conditions, accordingly. Release of the remainder of this record would not allow for any assessment of whether the chosen system is fit in its entirety for the purpose for which it was intended. Ultimately, its release would have no impact on public confidence in the chosen system. In so far as there is a public interest in the openness of the Department as to the various matters considered by it in its choice of system, I consider that this has been met by the release to you of other records concerning the assessment of the Unilect system.
ES&S did not respond to Ms Moran until 3 August 2007, in which it consented to the release of various parts of its tender (including the breakdown of proposed prices), which have now been released to you by the Department. It did not specify why it did not consent to the release of the tender in full, but it is reasonable to assume that it considers the remaining information to be commercially sensitive.
The remainder of the tender pertains to ES&S' approach to an e-voting project, that I consider would be of use to its competitors. In a situation where a customer/vendor relationship did not materialise, I accept that, in this case, there also exists a mutual understanding of confidence between the Department and ES&S in respect of the remainder of the tender. I can also accept that these details comprise commercially sensitive information about ES&S. I find the remainder of the tender to be exempt under sections 26 and 27 of the FOI Act, and for the reasons set out in respect of the remainder of the Unilect tender (bar costs therein), I find that there is no public interest in the release of that information.
Therefore, I find that the reminder of the tender submitted to the Department by ES&S should be withheld from you.
***
As an aside, the varying views as to release of various documentation, as expressed by the different tenderers, are worthy of comment. Indra, an unsuccessful tenderer, had no objections to the release of its documentation in full; some unsuccessful tenderers objected to the release of prices while others did not; and Nedap, the successful tenderer that has earned millions of euro of taxpayer monies, objects to the release of any portion of its tender. The fact that an unsuccessful tenderer saw fit to authorise the release of its documentation causes me to question whether it is reasonable for any of the other tenderers, in particular Nedap, to expect that similar records relating to them should be withheld at this point in time. However, this concern aside, I decided the most appropriate way to proceed was to assess the views put forward by the various entities in the context of my consideration of sections 26 and 27, where such views were expressed.
I note that the first page of record 1.22 is of a general nature, which does not refer to the companies concerned, nor does it refer to any of the tenders in any way. I do not accept that section 27(1) applies to it, nor do I accept that it qualifies for exemption under section 26 of the FOI Act.
I have dealt with the second page of record 1.22 in the section of the letter dealing with the Nedap tender. The remainder of record 1.22 refers to the other tenders. Records 1.24 and 1.31 refer to the Unilect tender, while record 1.30 refers to both the ES&S and Sequoia tenders (although the first page thereof is headed ES&S (Bull Cara), I am satisfied that it and the following page is intended to refer to the Sequoia Bull Cara tender). Record 1.43 refers to the Sequoia tender.
Ms Moran contacted the tenderers, on 25 July 2007, in respect of the records concerned. She also contacted Indra in respect of those records that concerned its tender. In the case of Indra, Unilect and Sequoia, she emailed personnel within these companies who had already made contact with her via email on foot of her letters of 22 January 2007, and asked for a reply by 31 July 2007. In the case of ES&S, which at this stage had even not responded to Ms Moran's January letter, she wrote to an address she had confirmed via the internet, and asked for a response by 7 August 2007. Ms Moran told all four companies that unless she heard to the contrary, she would take it that they did not object to the release of the records concerned. Indra immediately consented to the release of such records. No response was received from Unilect or Sequoia. The letter from ES&S of 31 August 2007, while it referred to Ms Moran's letter of 25 July 2007 and consented to release of part of its tender, did not comment on the release of the other records (which were the actual subject of the letter of 25 July 2007).
As in the case of the tenders, I take the view that the passage of time can mean that tenderers would have less concerns over the release of these documents than they would have had seven years ago. Accordingly, I take the view that unless the companies make a case to my Office as to why they oppose the release of the documents concerned, they have effectively not objected to the release of the documents concerned. As no replies were received from either Sequoia or Unilect, not even when Ms Moran sent a further email to the companies concerned on 30 July 2007 to the effect that she was assuming that their silence meant they had no objections to the release of the records concerned, I take it that they do not object to the release of these documents.
Given Sequoia's previous comment to Ms Moran that she may "proceed as [she saw] fit" in respect of its tender, and its silence on foot of her emails concerning the records of queries on the tenders, I cannot find that section 26 or 27 applies to such queries. The queries concerned are contained in records 1.22 (the third last page thereof), the first two pages of record 1.30 and in record 1.43 in full.
It is open to me to take the same approach in respect of Unilect, given its lack of response to Ms Moran's emails concerning such records. However, I have decided to take the approach of protecting any queries that might reveal information in those elements of the tender that I have found to be exempt from release. Having examined the relevant excerpt of record 1.22 (the last page thereof), I find no information therein that is not contained in those elements of the Unilect tender that have been released. Record 1.24 is Unilect's response to the Department's queries, and I see no reason to withhold it accordingly (it contains reference to a cost that I have already found should be released). Having examined record 1.31, I find no element of it that does not pertain to the elements of the Unilect tender that have been released and I direct that it be released to you, with the exception of the comment on the first page thereof (in respect of pages 7 and 29 of the tender) about the company providing support for the Unilect proposal. I find that the comment concerned could be deemed as commercially sensitive and I direct that the sentence be withheld.
It is not clear to me if the letter from ES&S to Ms Moran of 3 August 2007 was intended, by its silence in respect of the query records, to consent to their release. However, I have decided to take the similar approach that, where the queries pertain to any element of the ES&S tender that I have found to be exempt, I shall find similarly in respect of the queries.
Having examined the relevant two pages of record 1.22 (the second and third pages), I find only one query pertaining to part of the ES&S tender has not been released. I find that all elements of the two pages concerned should be released, with the exception to the query in respect of "Page 4" of the tender, as contained on the first page of the queries. Having examined the two pages of record 1.30 that pertain to ES&S (the third and fourth pages thereof), I note that it contains queries in respect of paragraphs 209 and 210 of the tender, which have not been released. I find that the two pages of record 1.30 concerned should be released to you, with the exception of the queries concerned (the last two queries on the first page, and the first query on the second page thereof - there being three queries on this page).
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended) I hereby vary the decision of the Department. I direct that the following be released to you:
I uphold the Department's refusal of the remaining records (the remainder of record 1.56 i.e. the ES&S Tender; the remainder of record 1.55 i.e. the Unilect tender bar costs; those elements of records 1.22 and 1.30 that refer to exempt elements of the ES&S tender; and the reference to the company providing support for the Unilect proposal, as contained on the first page of record 1.31 (i.e. the query in respect of pages 7 and 29 of the tender).
A party to a review, or any other person affected by a decision of the Information 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 eight weeks from the date of this letter.
Yours sincerely
Emily O'Reilly
Information Commissioner
