Freedom of information – update on recent FoI cases

first_img Public sector contractsWhen it comes to public sector contracts it is now common for aggrieved bidders (as well as other interested parties) to make a FoIA request for information which will give them an insight into how the bids were evaluated and what scores each bidder received. In Fred Keene v ICO and Central Office of Information (EA/2008/0097 14 September 2009) the appellant requested tender evaluation forms in respect of all those who submitted bids to the Central Office of Information (COI) for providing reprographics services. In all there were 14 tenderers and 28 evaluation forms (completed by two evaluators). In response to his request the appellant was given his own company’s evaluation information but not that of others, on the grounds it was commercially sensitive (section 43). The tribunal analysed all the information contained in the evaluation forms. It ruled that section 43 was not engaged either as prejudicing the bidders’ commercial interests or those of the COI. It noted that the forms were not an assessment of the bidders’ performance or the quality of their work. They did not contain what might properly be regarded as commercially sensitive information – for example, they contained almost no price information or financial data except for limited references to turnover in the ‘comments and notes‘ section. Such information would, in any event, be publicly available from sources such as Companies House. The key part of the evaluation form simply contained a score for each bidder against certain criteria. A number of these criteria were clearly specific to COI. There was no evidence before the tribunal that, as far as reprographic suppliers were concerned, COI’s criteria were likely to be the same or similar to other buyers of such services such that any negative assessment by COI would have the prejudicial effect that was claimed. The tribunal also took account of the fact that, as at the date of the request, the disputed information was already two years old and the information on the basis of which the applicants was assessed (for example, size of company and client list) may well have changed. The tribunal also noted the existence of the FoI (Civil Procurement) Policy and Guidance document published by the Office of Government Commerce relating to requests for civil procurement under the FoIA (see www.ogc.gov.uk). While this is not legally binding, the tribunal noted that its decision was consistent with the guidance that the CoI had failed to follow. Other legislationThe FoIA is not the only piece of legislation giving access to official information. Section 15 of the Audit Commission Act 1998 gives a right to ‘any persons interested’ (for example, local council tax payers) to inspect the accounts of a local authority, as well as other named organisations, such as the NHS, at the time of the annual audit for a limited period of 20 working days. This right extends to all books, deeds, contracts, bills, vouchers and receipts ‘relating to’ the accounts, as well as allowing the taking of copies of all or any part of the accounts and those other documents. It goes considerably beyond the FoIA, mainly because it is not subject to any commercial confidentiality exemptions. Section 15 came under judicial scrutiny in a recent High Court case. In Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council and Shlomo Dowen and Audit Commission [2009] EWHC 2382 (Admin), Veolia brought an action for judicial review asking the High Court to block Nottinghamshire County Council’s decision to release details of its multi-million-pound waste management contract, as well as invoices paid by the council. This followed a request by a local waste campaigner under the Audit Commission Act. Veolia argued that inspection should not be permitted because the contract and the invoices did not relate to the council’s accounts. This argument was rejected by Mr Justice Cranston, who ruled that the words ‘relating to’ in section 15 were sufficiently flexible to accommodate the documents in question. In reaching this conclusion, he took account of the fact that the function of section 15 is to enable interested persons to inspect documents that reveal how the council is spending public money. Such a function would obviously be frustrated if various contracts and invoices under which the council made payments to third parties were excluded from the right to inspect. Veolia also argued that a wide interpretation of section 15 would lead to confidential information in the contract and invoices being disclosed. The judge ruled that commercial confidentiality was not relevant under section 15, which only contained an exception for personal information. The recent controversy over bonuses paid to civil servants employed by the Ministry of Defence highlights the public interest in salaries and bonuses of public sector officials. The information commissioner’s guidance under the Freedom of Information Act 2000 (FoIA) on disclosure of employees’ salaries states that public authorities need only disclose salary information within a £5,000 band unless any of the following exceptional circumstances arise:A recent information commissioner decision under FoI (Department for Transport (FS50250552 24/09/2009)) involved a request for information relating to the exact salaries and latest bonuses of each chief executive of an agency of the Department for Transport (DfT) and for the permanent secretary. The DfT explained that some of the information requested was publicly available. The 2007/08 annual reports of the DfT and the relevant agencies contain salary information relating to the individuals concerned, within £5,000 bands. The department applied the section 40(2) exemption to withhold the information relating to the exact salaries and bonuses of the individuals concerned. Information in any formSection 84 of the FoIA defines information as ‘information recorded in any form’. This includes information held on paper, computer, video and audio as well as that contained in manuscript notes. But what of marks made on documents? In O’Connell v the Information Commissioner and Crown Prosecution Service (EA/2009/0010) (17 September 2009) the Information Tribunal considered access to manuscript notes made by a defence barrister on his client’s typed police interview record. The commissioner’s view was that some of the notes, which were just marks on a document, were not information for the purpose of the act. On appeal, the tribunal rejected this submission. In its view, however tenuous and potentially misleading the material sought may be, it still constituted information, even if it was only information to the effect that certain marks had been made on certain sheets of paper held by the public authority. The tribunal did, however, rule that the requested information was sensitive personal data and there was no justification in schedule 3 of the Data Protection Act to allow disclosure. Consequently it was exempt under section 40(2) of the FoIA, being third-party personal data. The commissioner agreed with this approach. He ruled that since in this case overall salaries, which include bonus payments if made, have been provided to the complainant within a £5,000 band, this provides the public with an overall picture of the amount of public money being spent and gives them an opportunity to scrutinise the decision. Disclosure of the precise salaries and bonuses would invade the privacy of the subjects which could not be justified. there are current controversies or credible allegations; there is a lack of safeguards against corruption; normal procedures have not been followed; the individual in question is paid significantly more than the usual salary for their post; or the individual or individuals concerned have significant control over setting their own or other’s salaries. Ibrahim Hasan, IBA Solicitors, Dewsbury , and is also a director of Act Now Traininglast_img read more

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