Whether the Department was justified in refusing access to the financial terms of a contract with a named company providing accommodation to international protection applicants on the basis of sections 30(1)(c) and 36(1) of the FOI Act

7 May 2021

Background

The applicant-�s request was handled by the Reception and Integration Agency, which was part of the Department of Justice (formerly the Department of Justice and Equality) at the time of her initial and internal review requests. However, during this review, responsibility for the Reception and Integration function of the Department of Justice transferred to the Department of Children, Equality, Disability, Integration and Youth (formerly the Department of Children and Youth Affairs).

All references to -�the Department-� in this decision should be taken as referring to either the Department of Justice or the Department of Children, Equality, Disability, Integration and Youth, as appropriate.

In a request dated 7 May 2020, the applicant sought access to a copy of a contract awarded by the Department to a named company relating to the provision of accommodation to international protection applicants in a named location.

In a decision dated 28 May 2020, the Department refused to grant access to the record sought on the basis of section 36 of the FOI Act (commercially sensitive information). On 4 June 2020, the applicant requested an internal review. The Department-�s internal review decision on 3 July 2020, affirmed its refusal on the same grounds. On 13 August 2020, the applicant applied to this Office for a review of the Department-�s decision.

During the course of this review, this Office-�s Investigator contacted the Department and asked if it would be willing to release the record in part to the applicant. On 23 October 2020, the Department released the contract, subject to the redaction of the financial terms, which it still considered to be exempt under section 36 of the FOI Act.

Both Departments made submissions to this Office in support of the refusal to release the financial terms contained in the contract. The Department of Children, Equality, Disability, Integration and Youth continued to rely on section 36(1)(b) and (c) in support of its refusal to release the information sought. However, the Department of Justice also relied on section 30(1)(c) (functions and negotiations of FOI bodies). During this review, this Office-�s Investigator informed the applicant of her view that the Department was justified in withholding access to the remaining information on the basis of section 30(1)(c) and invited her to comment by 25 February 2021. No reply has been received to date.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the applicant and by both Departments in support of the decision to refuse access to the remaining information contained in the contract.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

I note that the applicant indicated at internal review stage that she was seeking a copy of the contract with the commercial information redacted. However, it appears to me from later correspondence that the applicant does not consider the financial terms of the contract to be commercially sensitive.

I also note that in its submissions to this Office, the Department indicated that it was willing to release details of the minimum insurance level withheld from page 16 of the contract. If it has not already done so, I would expect it to arrange to release this information to the applicant now.

Accordingly, this review is solely concerned with whether the Department was justified in refusing to grant access to the monetary rates per person, per day and per 4 weeks, and the total amount payable, contained on page 34 of the contract, on the basis of sections 30(1)(c) and 36(1)(b) and (c) of the FOI Act.

Analysis and Findings

Section 30(1)(c) - Functions and negotiations of FOI bodies

While I note that the Department of Children, Equality, Disability, Integration and Youth solely cited section 36, I consider some of its arguments to apply to section 30, which was cited by the Department of Justice. I shall consider the comments of both Departments in this regard.

Section 30(1)(c) provides for the refusal of a request if the body considers that access to the record sought could reasonably be expected to disclose positions taken, or to be taken, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of an FOI body. Where the body relies on section 30(1)(c), it must also consider whether the public interest would, on balance, be better served by granting than by refusing to grant the request (section 30(2) refers).

Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not require an expectation of harm; it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiations. There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by Government or the FOI body of its negotiations. However, such issues may be relevant to the public interest test in section 30(2).

In its original decision, the Department referred to aRIA Policy Document on the Release of Financial Information on Contract Values. I note that page 1 of the policy states that in fulfilling its general accommodation responsibilities, the RIA does not -�lease or rent premises from commercial contractors-�, but that -�it 'contracts-in'-� services and facilities, including accommodation, -�for a fixed sum over the period of the contract-�. The policy also states that RIA -�endeavours to achieve the best value for money in relation to such contracts, in respect of which negotiations can take place with a number of commercial entities-�. The policy further sets out what has essentially been the Department-�s position in this case, which is that -�[i]t is not in the interests of the taxpayer that current details of individual contracts are made known both to the public and to other parties who are, or may be in the future, engaged in negotiations with the RIA. To compile or release such current detailed financial information could negatively affect the competitive position of the State-�.

During the review, the applicant queried the Department-�s refusal to release the contract in full, as it appeared as though this was based on an assertion that the terms were agreed on an emergency basis. The applicant had access to other records released under FOI which indicated that the Department had negotiated with the company concerned in 2019. Her view was that the financial terms were not agreed in an emergency situation relating to Covid-19 and she noted that details of all public procurement contracts awarded under the tendering process are open to public scrutiny and queried why this would not also apply in this case.

In response, in submissions to this Office, the Department stated that it appeared as though the requester had interpreted -�emergency situation-� purely in the context of Covid-19. It stated that since September 2018, the Department was required to contract in additional bed space in hotels and guesthouses due to insufficient capacity within its own accommodation portfolio. It said that it has made every effort to address the shortfall by opening new centres, but has been unsuccessful in eliminating the reliance on these premises completely. The Department stated that it had always referred to this type of accommodation as -�emergency accommodation-� in press responses, etc. It stated that the relevant terms had been negotiated and agreed in that context.

In essence, while the Department said that the outbreak of Covid-19 brought additional requirements for centres where it would have exclusive use on public health grounds, it acknowledged the relevant rates were agreed before this was an issue. However, the Department maintained its position that the rates information would affect its ability to negotiate in future.

I understand that the accommodation in question in this case was sourced under the Expressions of Interest procedure used by the Department when seeking -�emergency accommodation-�, and not through its standard tender process[1]. I also understand that this method involves negotiation with the relevant service provider to get the best value for money[2]. In the circumstances, I am satisfied that the release of the financial arrangements in the contract, which is still in place, would disclose positions to be taken by the Department in similar negotiations with other suppliers of similar services. Therefore, I find that section 30(1)(c) applies to the information at issue.

[1]https://merrionstreet.ie/en/news-room/releases/statement_by_the_department_of_justice_equality1.html

[2]https://www.oireachtas.ie/en/debates/question/2019-07-23/673/

The public interest

As a result, I am now required to apply the public interest balancing test under section 30(2) of the FOI Act. In relation to the public interest test contained in section 30(2), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.

However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website www.oic.ie ), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a -�sufficiently specific, cogent and fact-based reason-� is required -�to tip the balance in favour of disclosure-�.

Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The Department said that the reason for opening the centre on an emergency basis did not change the rationale for withholding the rates paid. It said that regardless of the circumstances, the point remains that the placing in the public domain of what the Department has negotiated with any supplier, compromises its ability to gain value for money by negotiating better rates with new suppliers. It said that it was not reasonable for potential suppliers to have prior knowledge of agreements the Department has with other parties for the provision of the same service.

The Department stated that it is constantly engaging with accommodation providers to procure sufficient accommodation to meet its legal obligations to persons seeking international protection and to secure best value for money for the Exchequer. It referred to its publication of details of its aggregate spend across all of its centres in response to requests, Parliamentary Questions and press queries. It stated that all contracts are subject to internal and external (Comptroller and Auditor General) audit and that details of individual contracts are generally released two years in arrears.

I accept that the Department negotiates with individual accommodation providers on an ongoing basis. Generally speaking, I am of the view that an FOI body is entitled to negotiate with suppliers without having to reveal financial details which could inform other suppliers what it is willing to pay. In the circumstances of this case, as set out above, I am satisfied that the information withheld would reveal a bargaining position the Department would be likely to adopt in future similar negotiations. On that basis, I recognise the public interest in protecting the Department's negotiating procedures, to enable it to obtain the greatest value for money possible.

The applicant has not pointed to any specific public interest in the release of the information at issue. From an examination of the withheld information, I do not see a public interest in favour of releasing the information beyond the general interest in knowing how the Department administers the provision of accommodation for international protection applicants and its expenditure of public funds in this regard. However, in line with the Supreme Court-�s findings in the Minister for Communications judgment, I do not consider this interest is sufficient to tip the balance in favour of release of the information.

I am also of the view that the public interest in this type of matters is met to some extent by the information published in arrears by the RIA. Accordingly, I consider that, on balance, the public interest in this case would be better served by refusing to grant access to the information at issue.

Having regard to the above, I find that the Department was justified in refusing to release the remaining financial terms of the contract on the basis of section 30(1)(c) of the FOI Act.

As I have found the information at issue to be exempt under section 30(1)(c), I do not need to consider the Department-�s reliance on section 36 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Department-�s decision to refuse access to the information withheld under section 30(1)(c) of the FOI Act, as outlined above. I find that, on balance, the public interest does not favour its release.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Deirdre McGoldrick

Senior Investigator