Section 47(3)(a) of the RTI Act – whether tender comprises exempt information under section 48 – whether disclosure would found an action for breach of confidence
Section 47(3)(b) of the RTI Act – whether tender comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49
The applicant sought access to a tender lodged with Council by a contractor, after receiving and paying an invoice from the contractor for maintenance undertaken at her property on the instruction of Council. When the applicant asked Council to explain the basis for the amount charged by the contractor, Council advised her to apply for access to the relevant tender but then found that the tender was exempt information and disclosure would, on balance, be contrary to the public interest.
While no written contract was entered into between Council and the contractor as required, the Information Commissioner was satisfied that a contract was on foot, the terms of which were set out in the invitation to tender and the tender lodged by the contractor. Relevantly, the invitation to tender also placed tenderers on notice of Council’s obligations to provide access to information including successful tender information under legislation.
The contractor objected to release of the tender on the basis that it contained confidential information and release may set a precedent which could adversely affect its business affairs.
The Information Commissioner considered whether disclosure of the tender lodged by the successful tenderer which led to the formation of a contract between Council and the contractor, would found an action for breach of confidence and/or on balance, be contrary to the public interest.
After considering the submissions made by the parties and the relevant tender documents, and in the absence of any specific evidence of the tender being lodged subject to a mutual understanding of confidence, the Information Commissioner found that disclosure of the tender would not found an action for breach of confidence as it was the only written record of certain terms of the contract between Council and the contractor for the performance of public services. Accordingly, the tender was not exempt information under section 47(3)(a) of the RTI Act.
The Information Commissioner then considered the public interest considerations relevant to disclosure of the tender. The personal and non-personal information in the tender was considered separately.
The Information Commissioner found that disclosure of the:
· personal information in the tender would, on balance, be contrary to the public interest as it would not assist the applicant to assess the reasonableness of the contractor’s charge but it would prejudice individuals’ right to privacy
· non-personal information in the tender would not, on balance, be contrary to the public interest as:
o the RTI reforms require government agencies to undertake business in an open, accountable and transparent way
o private sector businesses wishing to contract with government to perform public services to accept an appropriate level of scrutiny of their dealings with government and their performance including service delivery to the public and invoicing
o after considering relevant decisions regarding prejudice to the future supply of information to government as a result of disclosure of successful tender information, that disclosure of a successful tender submission could not reasonably be expected to result in organisations deciding not to tender for work, homogenising tender submissions generally or omitting significant information needed for the evaluation of their tenders which would disadvantage them in the competition for government contracts, particularly when such organisations are warned of the possibility of disclosure under Council’s legislative obligations (as was the case in this review)
o with respect to the Contractor’s claim that disclosure of the tender to the applicant may set a precedent under which its competitors are able to access this information which in turn may adversely affect the Contractor’s business affairs, it was noted that the contract had expired and the applicant is not a competitor of the contractor and has no association with any business competitor of the Contractor. Rather, the applicant merely wishes to find out details of the charges paid by her for work carried out by the Contractor at the instruction of Council. As this decision applies only to the facts of this matter and sets no precedent for any other application to which different facts apply, disclosure of the Non-Personal Information could not reasonably be expected to prejudice or adversely affect the Contractor’s business affairs and this consideration should be afforded little or no weight in the circumstances.
On balance, taking into account the matters set out above, the Information Commissioner was satisfied that:
· the factors favouring disclosure of the Non-Personal Information should be afforded significant weight in the circumstances
· the factors favouring non-disclosure of the Non-Personal Information should be afforded limited weight in the circumstances
· the factors favouring disclosure outweigh the factors favouring non-disclosure
· access to the Non-Personal Information may not be refused under section 47(3)(b) of the RTI Act as its disclosure would not be contrary to the public interest.
The decision under review is set aside and all but the personal information in the tender must be disclosed to the applicant as it is not exempt information, nor would its disclosure, on balance, be contrary to the public interest.
