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Case 020295. Records relating to the tender process concerning the acquisition of helicopters for the Air Corps - commercially sensitive information - section 27(1)(b) - whether the name and address of an individual is personal information - section 28(1) - whether disclosure of correspondence between the Tánaiste and third parties relating to the tender competition could reasonably be expected to affect adversely the international relations of the State - section 24(1)(c)

Case Summary

Facts

The requester applied to the Department of Enterprise, Trade & Employment for records relating to the tender process concerning the acquisition of helicopters for the Air Corps. The Department refused access to (i) part of one record on the ground that it contained commercially sensitive information, (ii) the name and address of a third party in a second record on the ground that access would involve the disclosure of personal information about the individual concerned and (iii) two items of correspondence between the Tánaiste and two third parties on the ground that access could reasonably be expected to affect adversely the international relations of the State.

Decision

The Commissioner found that part of the information withheld pursuant to the provisions of section 27(1)(b) related to the tender which was accepted by the Department. He found that disclosure of this information could not damage the competitive position of the tenderer in the future. The tenderer argued that the information at issue could no longer be regarded as successful tender information given that the Minister for Defence subsequently cancelled the planned purchase of helicopters and that no contract was signed. However, the Commissioner found that this did not alter the fact that the tender in question was chosen as the successful tender and that the information related to the price the Department was willing to accept following the tender competition.

While the Commissioner accepted that there will be circumstances where a person's address would not qualify as personal information for the purposes of the FOI Act, he found in this case that the disclosure of the name and address of a third party in the second record at issue would involve the disclosure of personal information relating to the individual in question.

The two items of correspondence at issue consisted of a letter from the Tánaiste to the Secretary of Commerce in the US and a letter from the American Ambassador to the Tánaiste. The Department argued that the disclosure of the correspondence at issue would allow for inferences to be drawn and comparisons to be made as to the nature of the relationships between the parties involved. It argued against the release of such correspondence on the ground that the US could not be confident that future confidential correspondence would be protected from disclosure and that such loss of confidence would have a cumulative effect on the nature and content of future diplomatic communications between the two States. The Commissioner considered this to be a claim for the exemption of all diplomatic correspondence as a class as such inferences and/or comparisons could, in his view, be made in respect of most correspondence between two parties regardless of the subject matter of the correspondence. He considered that, as section 24 is a harm-based exemption, an examination of the contents of the two records at issue was necessary. The Commissioner found that the contents of the records could not be considered to be sensitive and that the Department had not shown that there were real and substantial grounds for expecting that the disclosure of the two records could affect adversely the international relations of the State. He found that the Department was not justified in deciding to refuse access to the records.

Date of Decision: 09.09.2002

Our Reference: 020295

09.09.2002

Ms X

Dear Ms X

I refer to your application under the Freedom of Information Act, 1997 ("the FOI Act") on behalf of your client, Y, for a review of the decision of the Department of Enterprise, Trade & Employment ("the Department") in connection with your request for records relating to the tender process concerning the acquisition of helicopters for the Air Corps.

Background

I have now completed my review of the Department's decision. In carrying out that review I have had regard to your correspondence with the Department, to correspondence between my Office and the Department, and to correspondence between my Office and Sikorsky Aircraft Corporation ("Sikorsky").

Scope of Review

The Department enclosed with its original decision a schedule of 39 records which it identified as coming within the scope of your request. For ease of reference I have adopted the numbering system used in that schedule in referring to the records at issue. You indicated in your submission of 5 July 2002 to my Office that the outstanding records to which access is being sought are records 19, 31, 34, 38 and 39. As the Department has advised that it has recently released a copy of record 19 in full, I have not considered that record in this review. I also note that the Department granted partial access to records 31 and 34. Accordingly, my review is concerned with the question of whether the Department was justified in deciding to refuse access to

(i) seven money amounts and two percentage figures in record 31,
(ii) the name and address of a third party in record 34 and
(iii) records 38 and 39 in full.

Findings

Record 31

The Department claims that the exemption contained in section 27(1)(b) of the FOI Act applies to the withheld information in record 31, viz. seven money amounts and two percentage figures. Section 27(1)(b) protects 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. In effect, this section provides for the protection of commercially sensitive information. Record 31 is a letter from Sikorsky to the Tánaiste setting out its views as to why its tender should be accepted and seeking the Tánaiste's support for its tender. The letter explains that Sikorsky was able to submit a revised tender with a substantial price reduction.

Paragraphs 4 and 5:

Paragraphs four and five of record 31 contain four of the seven withheld money amounts and the two withheld percentage figures. The withheld information includes Sikorsky's initial pricing for the aircraft, the percentage of its maintenance cost advantage, and the amounts by which it reduced its prices. Sikorsky argues that the disclosure of this information would reveal its pricing strategy which would, in turn, damage its competitive position in the future.
I note that disclosure of the information at issue in paragraphs 4 and 5 would reveal nothing about Sikorsky's pricing strategy other than the price itself. Disclosure would not, for example, reveal anything about Sikorsky's pricing policy or how it arrived at the quoted prices for the particular tender competition. It appears that Sikorsky's argument is that disclosure of the information would allow its competitors an unfair advantage in future competitions. In Case Number 98049, Henry Ford & Sons Limited, Nissan Ireland, Motor Distributors Limited and the Office of Public Works, I dealt with the argument that release of the tender price will impact negatively on the ability of the successful tenderer to compete for similar business in the future. I concluded in that case that knowledge by future tenderers of the price quoted by an earlier successful tenderer does not automatically give them a significant advantage over the previously successful party. Once a competition is over, the tender price and the tender awarded become historic, pertaining as they do to a single transaction, and it seems to me that knowledge by other tenderers of the price accepted in an earlier tender does not of itself allow those parties to deduce with any certainty the price which will be offered in a later competition. In such circumstances, the disclosure of the tender price could not, in my view, damage the competitive position of Sikorsky in the future.

I note that both the Department and Sikorsky have argued that the information at issue can no longer be regarded as "successful tender information" given that no contract was subsequently signed and given that the Minister for Defence has now cancelled the planned purchase. It seems to me, however, that this does not alter the fact that Sikorsky's tender was chosen as the successful tender and as such, the information relates to the price the Department was willing to accept following the tender competition. In the circumstances, I find that section 27(1)(b) does not apply to the four withheld money amounts and the two withheld percentage figures in paragraphs four and five.

I should add that even if I were to find that the provisions of section 27(1)(b) apply, I would still be required to consider the application of the public interest test contained in section 27(3) which provides that the exemptions contained in section 27(1) do not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. As I found in Case Number 98049, the advantages in terms of openness and accountability of disclosing the successful tender prices outweigh the possible harm to the tenderers and the tender process. In the circumstances, I find that even if section 27(1)(b) were to apply, the public interest would, on balance, be better served by the release of the information at issue.

Paragraphs 6 and 7:

Paragraphs six and seven contain the three remaining withheld money amounts. The amounts withheld concern the amount of the financial commitment from GE (who manufacture the engines on the Sikorsky helicopter), the total value of Sikorsky's industrial participation program, and the estimated potential value to FLS Aerospace in respect of the business of helicopter conversions. I note that Sikorsky has withdrawn its objections to the release of this information. I also note that the details of the amount of the GE commitment as set out in paragraph six were previously published in the national newspapers in articles relating to the award of the contract for the provision of helicopters. In my view, the release of these three money amounts could not give rise to any of the harms identified in section 27(1)(b) and I find, therefore, that section 27(1)(b) does not apply.

In summary, therefore, I find that the Department was not justified in deciding to grant only partial access to record 31.

Record 34

Record 34 is a letter from the Private Secretary to the Tánaiste to a third party acknowledging receipt of that third party's letter regarding the Aerospace industry which was forwarded to the Tánaiste's Office by the Minister for Justice, Equality and Law Reform. The name and address of the third party have been withheld. Section 28(1) of the FOI Act provides for the protection of personal information relating to a third party. For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or to his/her family or friends or (b) is held by the public body on the understanding that it would be treated by it as confidential.

Your argument is that a person's name and address cannot fall within these provisions. I disagree. While I accept that there will be circumstances where a person's address would not qualify as personal information, it seems to me that a person's home address is, in the ordinary course of events, known only to his/her family or friends. Furthermore, disclosure of the withheld information in this case would disclose the fact that a particular individual had written to the Minister in connection with the Aerospace industry. In my view, this is personal information having regard to the definition of personal information as set out above. I find, therefore, that section 28(1) of the FOI Act applies to the name and address of the third party in this record.

Having found that section 28(1) applies, section 28(5) requires that I consider whether, on balance, the public interest that your request should be granted outweighs the public interest that the right to privacy of the third parties to whom the information relates should be upheld. As I am not aware of any positive public interest which would outweigh the right to privacy of the third party in this case, I find that, on balance, the public interest in protecting the right to privacy of the third party outweighs the public interest that the information be released. I find, therefore, that the Department was justified in deciding to withhold the name and address of the third party in record 34.

Records 38 and 39

Record 38 is a letter dated 4 October 2001 from the Tánaiste to the Secretary of Commerce in Washington. Record 39 is a letter dated 27 November 2001 from the American Ambassador to the Tánaiste. The Department claims that both records are exempt pursuant to the provisions of section 24(1)(c) of the FOI Act. Section 24(1)(c) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to affect adversely the international relations of the State. Section 24(2) provides specific examples of the types or records which may be covered by the exemption in 24(1) and includes, at 24(2)(b), "... a communication between a Minister of the Government and a diplomatic mission or consular post in the State or a communication between the Government or a person acting on behalf of the Government and another government or a person acting on behalf of another government"

I am satisfied that records 38 and 39 are of a type outlined in section 24(2)(b). However, this does not conclude the matter. For the Department to be entitled to refuse access to these records, it must show to my satisfaction that, in the opinion of the head, access to the records could reasonably be expected to affect adversely the international relations of the State. For the Department to succeed in its arguments, I have to be satisfied that granting access to the records in respect of which the exemption is claimed could reasonably be expected to have the adverse effect so identified. In my view, there must be real and substantial grounds for any such expectation, at the time the decision to refuse access is made. The mere possibility of some adverse effect on international relations is not sufficient.

The Department says that the general tone of the two records in question conveys a distinct flavour of the type of relationship enjoyed, at a particular point in time, between the Tánaiste and the American Secretary of Commerce and the American Ambassador and that the phrases used in the paragraphs surrounding the Sikorsky issue are very open in conveying the relationship. It considers that, given that relationships can differ over time, the release of "such recent diplomatic correspondence" would impact adversely on US confidence and trust in Ireland. It considers that the release of the records "... would be the first harmful event in a process that would have a cumulative effect into the future leading to future communications lacking the candour of current texts, being written with an eye to possible comparisons to correspondence with other countries and ultimately encouraging a tendency towards oral communications only where sensitive matters arise". The Department also considers that as diplomats and politicians change their postings it might be expected that the relationships conveyed in correspondence at different points in time would show greater or lesser warmth. It argues that it is not in Ireland's interest to put diplomats in the position of having public comparisons drawn as between correspondence to them as opposed to their fellow diplomats. It says that it is vital that nothing be done to jeopardise the fullest possible exchange of information and good relations between Ireland and the US.

It seems to me that the Department is arguing against the release of all recent diplomatic correspondence between the US and Ireland where the release of such records would allow for inferences to be drawn and comparisons to be made as to the nature of the relationships between the parties involved on the ground that the US could not be confident that future confidential correspondence would be protected from disclosure and that such loss of confidence would have a cumulative effect on the nature and content of future diplomatic communications between Ireland and the US. Given that such inferences and/or comparisons could, in my view, be made in respect of most correspondence between two parties regardless of the subject matter, this would appear to be an argument for protecting all recent diplomatic correspondence as a class. Section 24 of the FOI Act is a harm based exemption and cannot be applied to particular records simply as a result of their falling within a particular class of records. For the exemption contained in section 24(1) to apply, the public body must be satisfied that disclosure of the record in question would result in the occurrence of the harm which the exemption seeks to guard against.

While I do not propose to attempt to give an exhaustive explanation of how the international relations of the State could be affected adversely, I do accept, as a broad proposition, that the release of records containing sensitive or embarrassing material or material which another State has expressly requested be kept confidential or material the release of which could be detrimental to the interests of another State could reasonably be expected to affect adversely the international relations of the State. I do not accept, however, that the exemption contained in section 24 can generally be applied to records containing non-sensitive material.

The Department says that it had regard to the guidance outlined in CPU Notice No. 18 - FOI and International Relations, issued by the Central Policy Unit ("the CPU") of the Department of Finance, in interpreting the harm test in section 24(1)(c) in that it consulted with the Department of Foreign Affairs on the matter. However, this Notice also advises that the FOI Act requires the release of records to the greatest extent possible and that while foreign authorities need not fear FOI, they can no longer expect that all their dealings with Ireland will routinely be protected from public view. I cannot accept that all diplomatic correspondence which could allow for inferences to be drawn and comparisons to be made as to the nature of the relationships between the parties involved in such correspondence should be protected as a matter of course regardless of the sensitivity, or otherwise, of the subject matter of the correspondence. Furthermore, it seems to me that in drawing or making any such inferences or comparisons, regard must be had to the fact that an item of correspondence which might indicate the nature of the relationship between the parties at a particular point in time in respect of a particular subject could not be said to automatically reflect the nature of the relationship which generally exists between those parties. In the circumstances, I consider that an examination of the contents of the two records at issue in this case is necessary in order to determine the applicability of section 24(1).

I should explain, at this stage, that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal. These constraints mean that, in the present case, the extent of the reasons which I can give is limited. I can say, however, that the contents of the two records could not, in my view, be described as being of a sensitive nature. I would not consider the general thrust of either record to be in any way unusual given the respective roles/functions of the parties involved. While one or more of the parties involved may not have expected that the letters would be released on foot of an FOI request, I do not consider that there are real and substantial grounds for expecting that the disclosure of these particular records could result in the harm identified by the Department, namely, that it would impact adversely on US confidence and trust in Ireland which would, in turn, result in future correspondence between the two States being affected adversely. Furthermore, while the Department has referred to the "mosaic theory" or the "theory of cumulative prejudice" in support of non-release, it has not shown to my satisfaction how the information contained in the two records could be combined with other information so as to create a reasonable expectation of adverse effect on international relations. In the circumstances, I find that the Department was not justified in deciding to refuse access to records 38 and 39.

Decision

Having carried out carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby vary the decision of the Department of Enterprise, Trade and Employment in this case. While I affirm the decision of the Department to withhold the name and address of the third party in record 34, I direct that records 31, 38 and 39 be released in full.

A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than 4 weeks from the date of this letter. You should note that effect cannot be given to this decision before the expiration of this four week time limit.

Yours sincerely

Information Commissioner