Rylsey Enterprises Pty Ltd and Cassowary Coast Regional Council [2015] QICmr 13 (12 May 2015)
REASONS FOR DECISION
Summary
1. The applicant applied to Cassowary Coast Regional Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a range of information relating to the tender process for Council’s contract for the receipt, storage, transportation and disposal of waste.
2. Council refused access to some of the requested information. The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision, also raising concerns that Council had not located all of the requested information.
3. Most of the issues were informally resolved on external review. However, Council objected to the disclosure of a small amount of information comprising the scores which Council’s assessment team gave to the successful tender submission in the tender evaluation process. Council has the onus of establishing that the decision to refuse access to the information was justified and submitted that disclosing this information would, on balance, be contrary to the public interest.
4. For the reasons addressed below, Council has not discharged the onus and there is no basis to refuse access to this information under the RTI Act. Accordingly, Council’s decision is set aside.
Background
5. Significant procedural steps relating to the application are set out in the appendix to this decision.
Reviewable decision
6. The decision under review is Council’s internal review decision dated 3 June 2014.
Evidence considered
7. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendix).
Information in issue
8. Council’s contract for the receipt, storage, transportation and disposal of waste was divided into three portions. The information in issue comprises the panel member scores, weighted scores and total score which Council’s assessment team gave to the successful tender submission in the tender evaluation process in relation to portions one and two of the contract (Information in Issue).1 The applicant was an unsuccessful tenderer in relation to portions one and two of the contract.
Issues for determination
9. A number of issues were resolved informally on external review.2 Council objects to disclosure of the Information in Issue on the basis that its disclosure would, on balance, be contrary to the public interest. The remaining issue for consideration is whether Council has discharged the onus under section 87(1) of the RTI Act in establishing that its decision to refuse access to the Information in Issue was justified.
Onus on external review
10. Section 87(1) of the RTI Act provides that on external review, the agency who made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant. In this review, Council bears the onus of establishing that access to the Information in Issue can be refused under the relevant provisions of the RTI Act.
Relevant law
11. Under the RTI Act, a person has a right to be given access to documents of an agency.3 However, this right is subject to limitations, including grounds for refusal of access.4
12. Access to information may be refused where disclosure would, on balance, be contrary to the public interest.5 The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest and also explains the steps that a decision-maker must take in deciding the public interest as follows:6
- identify any irrelevant factors and disregard them
- identify relevant public interest factors favouring disclosure and nondisclosure
- balance the relevant factors favouring disclosure and nondisclosure; and
- decide whether disclosing the information would, on balance, be contrary to the public interest.
Findings
13. Council objects to disclosure of the total score which Council’s assessment team gave to the successful tender submission in the tender evaluation process. However, Council has previously provided the applicant with a copy of a report which contains the total score.7 OIC raised this with Council on external review but Council continued to object to disclosing the total score under the RTI Act without providing reasons. As Council has previously disclosed this information to the applicant, I am satisfied that there is no basis to refuse access to this information under the RTI Act. In any event, and for completeness, I have also considered whether disclosing this information would, on balance, be contrary to the public interest.
Irrelevant factors
14. Council submits that it ‘questions the unsuccessful tenderer’s purpose in receiving and use of, the weighting scores’.8
15. An OIC decision has previously explained that:9
An access applicant’s motives for seeking access to information are irrelevant to a consideration as to whether access should be granted to requested information. Speculation as to the identity of a particular access applicant, the access applicant’s reasons for lodging an application, and any intended use of the information are not generally matters to be taken into account in assessing the balance of the public interest.
16. Council’s submission does not give rise to a relevant consideration under the RTI Act. The applicant’s reasons for seeking access to the Information in Issue are irrelevant and I have not taken them into account.
17. No other irrelevant factors arise in relation to the Information in Issue and I have not taken any into account. I will now consider the relevant factors favouring disclosure and nondisclosure of the Information in Issue.
Factors favouring disclosure
18. Council submits that ‘there is a minimal public interest in the release of the weighting scores to the unsuccessful tenderer as Council has not engaged in the contract with the company (applicant)’.10 The fact that the applicant was not awarded portions one and two of the contract does not reduce the weight of the relevant factors favouring disclosure of the Information in Issue.
19. I am satisfied that disclosing the Information in Issue could reasonably be expected to:11
- promote open discussion of public affairs and enhance Council’s accountability;12 and
- reveal the reason for Council’s decision and any background or contextual information that informed the decision.13
20. The Information in Issue is directly relevant to Council’s decision to award a contract to a private sector company for the provision of services which are paid from ratepayer funds. It reveals how Council evaluated the successful tender submission, compared to the unsuccessful tender submission.14
21. Council is accountable to the public regarding the decisions it makes to award tenders for the performance of work that is to be paid for by public funds. Council must be able to demonstrate that tender processes have been carried out fairly and equitably, and that the successful tenderer was the best candidate, in terms of efficiency, effectiveness and economy in the delivery of services.15 Private sector businesses contracting with Council to perform public services must also accept an appropriate level of scrutiny in their dealings with Council.16 In these circumstances, I am satisfied that disclosing the Information in Issue would reveal how Council reached the decision to award portions one and two of the contract and would provide relevant context to Council’s decision.
22. I also consider that disclosing the Information in Issue could reasonably be expected to ensure effective oversight of expenditure of public funds. This is a public interest factor favouring disclosure.17 The contract represents a significant amount of Council expenditure and disclosing the Information in Issue would allow public scrutiny of Council’s tender process and whether government is achieving value for ratepayers in the delivery of services.
23. For these reasons, I afford each of these three public interest factors significant weight.
Factors favouring nondisclosure
24. Council submits that a number of public interest factors favouring nondisclosure apply to the Information in Issue, which I will now address.
Prejudice to business, commercial or financial affairs
25. Council relevantly submits that the Information in Issue, ‘if disclosed, would likely impact heavily on either or both of the local business enterprises’ and that:18
Public disclosure of the weighting scores may also have an adverse effect on the unsuccessful tenderers business, commercial or financial affairs, particularly if the information was placed in the public domain. Serious consideration required as to the small regional area in which these businesses operate.
26. I have considered whether disclosing the Information in Issue could reasonably be expected to prejudice the business, commercial or financial affairs of an entity or person.19 The Information in Issue relates to the successful tenderer. The applicant is the unsuccessful tenderer. I am unable to identify any adverse effect on the applicant’s business affairs that could reasonably be expected to result from disclosing the Information in Issue, despite Council’s submissions. Similarly, I am unable to identify any adverse effect on the successful tenderer’s business affairs that could reasonably be expected to result from disclosing the Information in Issue and Council has identified none.
27. Council also explained that the successful tenderer would object to disclosure of the Information in Issue under the RTI Act20 and that the consultation process with the successful tenderer would give OIC ‘a greater understanding as to the concerns of the successful tenderer and of their belief that the information proposed for release, is not information considered to be in the public interest, but to provide an opportunity for the unsuccessful tenderer to potentially query the tender outcome’.21
28. Council consulted with the successful tenderer under section 37 of the RTI Act during the processing of the access application. The successful tenderer objected to the disclosure of information about its corporate structure, the manner in which it goes about its business, its pricing policy, rates and commercial resources.22 The Information in Issue does not comprise this type of information.
29. OIC also contacted the successful tenderer during the external review to notify it of the likely release of additional information under the RTI Act, including the Information in Issue, and invited it to provide submissions if it objected to disclosure of the information.23 The successful tenderer did not object to the release of the relevant information on external review.
30. For these reasons, I am not satisfied that Council’s submissions give rise to a factor favouring nondisclosure of the Information in Issue.
Provide the basis for a legal challenge
31. Council submits that:24
Disclosure of the information could reasonably be expected to prejudice the collective responsibility of Council or the individual responsibility of council officers. Adverse affect on officers as may provide a basis for legal challenge to the contracts decision which would result in the agency (CCRC) having to fund a legal challenge and possibly pay compensation to either party – (a) The successful contractor who CCRC has awarded the contract to if the challenge is successful (b) The challenger if the challenge was successful, all of which involves expending of public monies, this then having an adverse effect on the Cassowary Coast Community. (unnecessary cost in time, resources and possibly dollars).
32. Council’s submission on this issue is unclear and does not appear to relate to any of the factors identified in schedule 4 of the RTI Act. As noted above, Council is responsible for the decisions it makes in relation to the expenditure of ratepayer funds and the tender process is subject to a degree of public scrutiny. If disclosing the Information in Issue under the RTI Act would give rise to a legal remedy, then this is a factor favouring disclosure of the Information in Issue.25 Alternatively, Council’s concern may be interpreted as suggesting that, while there is no basis for challenging the decision to award the contract, the applicant would nonetheless litigate Council’s decision. In my view, any such concern is based on mere speculation and does not give rise to a relevant nondisclosure factor under the RTI Act.
33. I am not satisfied that Council’s submissions give rise to a factor favouring nondisclosure of the Information in Issue.
Prejudice to Council’s deliberative process
34. Council submits that disclosing the Information in Issue could reasonably be expected to prejudice its deliberative process26 and that ‘[c]onfidential information sessions with Councillors on tender assessments may need to be modified in future given the determination in this instance’.27
35. The RTI Act recognises that a public interest factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice a deliberative process of government (Nondisclosure Factor).28
36. The RTI Act also provides that disclosing information could reasonably be expected to cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded or a consultation or deliberation that has taken place in the course of, or for, the deliberative processes involved in the functions of government (Harm Factor).29
37. Once it is established that the Information in Issue is deliberative process information, the Harm Factor will apply. It is then relevant to consider the nature and extent of the public interest harm that may result through disclosure.30 For the Nondisclosure Factor to apply, a reasonable expectation of prejudice to the relevant deliberative process must be established.
38. The Information Commissioner has previously referred with approval to the following comments in considering the meaning of ‘deliberative processes’ involved in the functions of an agency:31
The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action…
It by no means follows, therefore, that every document on a departmental file will fall into this category. … Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency…
39. I am satisfied that the tender scores in this review comprise opinions that have been recorded in the course of Council’s deliberative process in evaluating competing tender submissions. The Information in Issue does not deal with purely procedural or administrative processes. Accordingly, the Harm Factor applies to the Information in Issue. It is now relevant for me to consider the nature and extent of the public interest harm that may result through disclosing the Information in Issue and whether a reasonable expectation of prejudice to the relevant deliberative process is established.
40. I consider Council officers must be permitted to canvass all possibilities and make subjective evaluations on the information before them without concern that such recommendations will be disclosed. There is a public interest in government being able to make informed decisions in the course of carrying out its functions and in doing so, to have access to the widest possible range of information and advice without fear of interference.32 However, I consider it is relevant that Council’s evaluation of the tender submissions is complete and the contract has been awarded. I am satisfied that this reduces the extent of harm that disclosure could reasonably be expected to cause to Council’s deliberative processes.
41. I have also considered whether disclosing the Information in Issue would prejudice the substance or quality of Council’s future deliberations. I find it reasonable to expect that Council would be required to evaluate tender submissions in future by attributing scores to the relevant components, as set out in the Information in Issue, to ensure that that tender processes were dealt with thoroughly and appropriately. Therefore, I do not consider that the quality of Council’s deliberations in the future would be likely to suffer to such an extent that it would be contrary to the public interest if the Information in Issue were disclosed.
42. For the reasons set out above, I find that:
- the Harm Factor applies but there is no specific or tangible harm to Council’s deliberative processes that could reasonably be expected to be caused by disclosing the Information in Issue and, therefore, the Harm Factor carries minimal weight in favour of nondisclosure; and
- the Nondisclosure Factor does not apply as disclosure could not reasonably be expected to prejudice Council’s deliberative processes.
Other submissions
43. Council submits that:
- Council ‘may now be placed in a position where it feels it is unable to protect commercial information provided to it’33
- tender assessment sessions are confidential;34 and
- disclosing the information could reasonably be expected to prejudice the competitive commercial activities of an agency.35
44. Council has provided no further information to support these submissions. The Information in Issue has not been provided to Council by a third party—it comprises scores recorded by Council officers in evaluating the successful tender submission. Based on the information which Council has provided, I am not satisfied that these submissions give rise to any relevant factors favouring nondisclosure of the Information in Issue.
45. Council also submits that ‘Schedule 3(3) without limiting subsection (1), the following documents are taken to be documents comprised exclusively of exempt information under subsection (1)- (a) – (g).’36 I am unable to identify the provision in the RTI Act to which this submission relates and Council has not provided any submissions to clarify.
Balancing the public interest factors
46. The RTI Act is to be administered with a pro-disclosure bias meaning that access to information should be granted unless giving access would, on balance, be contrary to the public interest.37
47. I afford significant weight to each of the three factors favoring disclosure of the Information in Issue. Council is accountable to the public regarding the decisions it makes to award tenders for the performance of work that is to be paid for by public funds. The Information in Issue is directly relevant to Council’s decision to award the contract and its disclosure would promote each of these factors.
48. The Harm Factor relating to Council’s deliberative process applies and is a factor favouring nondisclosure of the Information in Issue. However it carries minimal weight because:
- the tender evaluation process is complete and the contract has been awarded; and
- disclosing the Information in Issue would not prejudice the substance or quality of Council’s future deliberations in the tender evaluation process.
49. There are no other public interest factors favouring nondisclosure of the Information in Issue. I am satisfied that disclosing the Information in Issue would not, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act.
DECISION
50. For the reasons set out above, I set aside Council’s decision and find that disclosing the Information in Issue would not, on balance, be contrary to the public interest. I find that Council has not discharged the onus under section 87(1) of the RTI Act and has not established that a decision to refuse access to the Information in Issue is justified.
51. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.
________________________
Tara Mainwaring
A/Assistant Information Commissioner
Date: 12 May 2015
APPENDIX
Significant procedural steps
| Date | Event |
|---|---|
| 10 April 2014 | Council received the access application. |
| 2 May 2014 | Council issued its decision to the applicant. |
| 21 May 2014 | Council received the internal review application. |
| 3 June 2014 | Council notified the applicant the initial decision was affirmed. |
| 13 June 2014 | OIC received the external review application. |
| 16 June 2014 | OIC notified Council and the applicant that the external review application had been received. OIC asked Council to provide relevant procedural documents by 23 June 2014. |
| 18 June 2014 | OIC received the requested documents from Council. |
| 27 June 2014 | OIC notified the applicant and Council that the external review application had been accepted. OIC asked Council to provide additional procedural documents and a copy of all of the documents located in response to the access application, clearly showing the information to which access was refused and the basis for refusing access, by 10 July 2014. |
| 4 July 2014 | OIC received the requested documents from Council. The documents in issue were provided to OIC in a redacted form. |
| 31 July 2014 | OIC asked Council to provide an unmarked version of the documents in issue. |
| 1 August 2014 | OIC confirmed the request for Council to provide an unmarked version of the documents in issue and to identify the basis for each of Council’s refusals by 7 August 2014. |
| 8 August 2014 | OIC received the requested documents from Council. |
| 14 August 2014 | The applicant provided OIC with a copy of documents in the form they were released by Council. OIC requested that Council provide further information to enable OIC to correctly identify the information for consideration on external review and respond to a number of sufficiency of search issues by 28 August 2014. |
| 28 August 2014 | OIC received Council’s submissions and the additional requested documents. |
| 4 December 2014 | OIC asked the applicant to provide OIC with a copy of the documents which Council had released to it administratively prior to the access application. OIC asked Council to provide a copy of Council’s invitation to tender document. |
| 8 December 2014 | OIC received the requested document from Council. OIC asked Council to provide a copy of the successful tender submission. |
| 10 December 2014 | OIC received the requested documents from the applicant. |
| 16 December 2014 | OIC requested that Council provide further information to enable OIC to correctly identify the information for consideration on external review by 19 December 2014. |
| 17 December 2014 | OIC received the requested documents from Council. |
| 8 January 2015 | OIC conveyed its preliminary view to Council on the release of additional information to the applicant and invited it to provide submissions by 22 January 2015 if it did not accept the preliminary view. Council requested an extension of time to provide submissions in response to the preliminary view. |
| 9 January 2015 | OIC granted Council an extension of time to respond to the preliminary view until 5 February 2015. |
| 27 January 2015 | OIC received Council’s submissions. Council agreed to release some additional information to the applicant and provided submissions objecting to the disclosure of the Information in Issue. |
| 29 January 2015 | OIC conveyed its preliminary view to the applicant on a number of issues and invited it to provide submissions supporting its case by 13 February 2015 if it did not accept the preliminary view. |
| 30 January 2015 | OIC confirmed the preliminary view to Council that there was no basis to refuse access to the Information in Issue and invited Council to provide any further and final submissions supporting its case by 13 February 2015 if it continued to object to its disclosure. |
| 10 February 2015 | OIC received Council’s submissions. Council notified OIC that it did not accept OIC’s preliminary view and maintained its objection to release of the Information in Issue. |
| 18 February 2015 | OIC consulted a third party (the successful tenderer) about the likely release of information to the applicant and invited the third party to provide submissions supporting its case by 11 March 2015 if it objected to release of the information. |
| 23 February 2015 | Council sent the third party a copy of the documents for consultation. |
| 17 March 2015 | OIC notified the third party that, as no objection to release of the information had been received, the information would be released under the RTI Act. |
| 23 March 2015 | OIC asked Council to release the information which was no longer in issue to the applicant by 30 March 2015. |
| 26 March 2015 | Council notified OIC that it had released the relevant information to the applicant. |
| 1 April 2015 | The applicant confirmed that it continued to seek access to the Information in Issue. |
[1] This information appears at pages 58, 66, 76, 84, 93, 97 and 108.
[2] Council located and agreed to release additional information to the applicant on external review. The applicant also accepted OIC’s preliminary view in relation to a number of issues. As these issues have been resolved informally, they are no longer in issue on external review and are not dealt with in these reasons for decision.
[3] Section 23(1)(a) of the RTI Act.
[4] Section 47 of the RTI Act sets out the grounds on which access may be refused to documents.
[5] Section 47(3)(b) of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the wellbeing of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.
[6] Section 49(3) of the RTI Act.
[7] The applicant has also confirmed in an email to OIC on 10 December 2014 that it has received this information from Council.
[8] Submission to OIC dated 21 January 2015.
[9] Helping Hands Network Pty Ltd and Department of Education, Training and Employment (Unreported, Queensland Information Commissioner, 30 October 2012) at paragraph 66, citing State of Queensland v Albietz [1995] 1 Qd R 215 at 219 where de Jersey J observed that ‘the Freedom of Information Act does not confer any discretion on the Information Commissioner, or the Supreme Court, to stop disclosure of information because of any particular motivation in the applicant’. See also the Victorian Supreme Court decision in Victoria Police v Marke [2008] VSCA 218, in which Weinberg JA noted at paragraph 66 ‘[the FOI Act] does not, in the normal course, contemplate that the motives of the person seeking access to a document should be scrutinised and characterised as either worthy or unworthy. These are value judgements, which are likely to be highly subjective, and have no place in a scheme that is designed to ensure the proper accountability of government.’ I consider these observations apply equally to the RTI Act.
[10] Submission to OIC dated 21 January 2015.
[11] The term 'could reasonably be expected to' requires that the expectation is reasonably based, that it is neither irrational, absurd or ridiculous, nor merely a possibility. Whether the expected consequence is reasonable requires an objective examination of the relevant evidence. It is not necessary for a decision-maker to be satisfied upon a balance of probabilities that disclosing the document will produce the anticipated prejudice. The expectation must arise as a result of disclosure, rather than from other circumstances: see Nine Network Australia Pty Ltd and Department of Justice and Attorney-Genera/ (Unreported, Queensland Information Commissioner, 14 February 2012) at paragraph 31.
[12] Schedule 4, part 2, item 1 of the RTI Act.
[13] Schedule 4, part 2, item 11 of the RTI Act.
[14] Council has released the scoring relating to the applicant’s tender submission.
[15] CH32GI and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 22 November 2012) at paragraphs 47 - 48 citing Wanless Wastecorp and Caboolture Shire Council; JJ Richards & Sons Pty Ltd (Third party) (2003) 6 QAR 242 at paragraph 145.
[16] Huang and Redland City Council (Unreported, Queensland Information Commissioner, 8 September 2010) at paragraphs 26 - 27.
[17] Schedule 4, part 2, item 4 of the RTI Act.
[18] Submission to OIC dated 21 January 2015.
[19] Schedule 4, part 3, items 2 and 15 and schedule 4, part 4, item 7(1)(c) of the RTI Act.
[20] Submission to OIC dated 21 January 2015.
[21] Submission to OIC dated 4 February 2015.
[22] Letter from the third party to Council dated 1 May 2014.
[23] As required under section 97(4) of the RTI Act.
[24] Submission to OIC dated 21 January 2015.
[25] Schedule 4, part 2, items 16 and 17 of the RTI Act. See also Willsford and Brisbane City Council (1996) 3 QAR 368 at paragraph 17 (in the context of the now repealed Freedom of Information Act 1992 (Qld)) and Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at paragraph 21.
[26] Submission to OIC dated 21 January 2015.
[27] Submission to OIC dated 4 February 2015.
[28] Schedule 4, part 3, item 20 of the RTI Act.
[29] Schedule 4, part 4, item 4 of the RTI Act.
[30] In Trustees of the De La Salle Brothers and Queensland Corrective Services Commission (1996) 3 QAR 206 at paragraph 34 the Information Commissioner considered, in the context of the exemption relating to deliberative process information in the repealed Freedom of Information Act 1992 (Qld), that ‘specific and tangible harm to an identifiable public interest (or interests) would result from disclosure’. I consider that this is a relevant consideration when applying the Harm Factor under the RTI Act.
[31] Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at paragraphs 28-30 citing with approval the definition given in Re Waterford and Department of Treasury (No.2) (1984) 5 ALD 588 at 606. The Information Commissioner’s decision involved the repealed Freedom of Information Act 1992 (Qld) but the comments are relevant to the application of these factors under the RTI Act.
[32] Metcalf and Maroochy Shire Council (Unreported, Queensland Information Commissioner, 19 December 2007) at paragraph 47.
[33] Submission to OIC dated 4 February 2015.
[34] Submissions to OIC dated 4 February 2015 and Council’s decisions.
[35] Schedule 4, part 3, item 17 of the RTI Act. Council referred to this public interest factor in letters to OIC dated 4 August 2014 and 21 August 2014. However, Council did not rely on this factor in recent submissions in relation to the Information in Issue.
[36] Submission to OIC dated 21 January 2015.
[37] Section 44 of the RTI Act.
