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FOI and public procurement: the disclosure exemption is not the rule

Thursday October 10th, 2013

Freedom of Information (FOI) legislation aims to ensure transparency in the use of public funds.  But when it is used to try to obtain sensitive information about tenders, it can jeopardise healthy competition – businesses may be discouraged from dealing with the public sector if they think their confidential information will be disclosed.  It can also make it more difficult for public bodies to evaluate tenders if the businesses submitting tenders withhold information out of fear that it will be disclosed. Unlike procurement regulations, which give specific rights only to businesses which were unsuccessful in a procurement process or which were wrongly prevented from taking part in a procurement process, FOI rights are available to the public generally.

Jill Fryer

Jill Fryer

Although the principle behind FOI legislation is that information should be disclosed, disclosure is subject to certain exemptions and conditions. In terms of procurement processes, the most likely exemption is contained in section 33 of the Freedom of Information (Scotland) Act – that disclosure of the information is likely to prejudice substantially the commercial interests of any person (including the public body). The Scottish Procurement Directorate has produced useful guidance on the application of this exemption to procurement processes but it is only guidance; each case must be decided on its own merits.

The July 2013 decision in relation to Salmonds Mini-Coach Hire illustrates how the Scottish Information Commissioner approaches FOI requests relating to procurement. Salmonds had asked West Lothian Council for information about current operating contracts for the transport of social work clients, including which businesses operate which routes and for what price.  Although many businesses would expect such “price per route” information to be confidential, the Commissioner ruled that the Council must disclose it.

Some of the factors which led the Commissioner to this conclusion were that the Council’s decision to withhold the information related to the consequence of disclosing this type of information rather than the specific information requested in the specific circumstances of this case.  The Commissioner also relied on the fact that the Council had not taken into consideration the views of the current transport operators and interestingly, the Commissioner also took into account that price is only one factor which the Council takes into account when awarding this type of contract.

The message for public bodies is clear – before relying on an FOI exemption, the public body must look at the individual circumstances of the case and ascertain the particular and specific probability of real or actual harm around the ability to do business. Information cannot be withheld simply because it belongs to a particular class of information.

 

Jill is an Associate with Harper Macleod LLP and can be contacted at jill.fryer@harpermacleod.co.uk

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Website: www.harpermacleod.co.uk

 

Gov Opps training partner, PASS (Procurement Advice Support Service) runs relevant training courses for public sector procurement. These include Evaluation and Standstill, Drafting a Compliant PQQ, Introduction to Public Procurement, Competitive Dialogue and Writing a Tender Specification. To get more info on the courses, click HERE.

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