This Guideline has been developed to assist agencies when considering access applications for documents from government tender processes. It outlines what kind of information is often found in tender documents, factors which may be relevant in determining whether release of information is contrary to the public interest and what types of information may be considered exempt information.
Public sector agencies regularly advertise for tenders from companies for the delivery of goods and services. Tendering by the Queensland public sector ensures a means of obtaining best value, a fair price and probity and accountability of the procurement process. 1 Government projects involve the expenditure of public funds which highlights the need for the procurement process to be transparent and fair. There is a strong public interest in transparency in government procurement and information about tendering processes should be made available as a matter of course.
Transparent Tender Processes
Tender processes conducted by public sector agencies are usually governed by specific conditions of tender which set out the criteria that tendering businesses need to address and the types of information they are expected to provide. Conditions of offer also specify what information will be made public during, or at the conclusion of, the tender process.
Transparency in tendering and other procurement processes can also deliver cost savings through more competitive pricing and through the ability to compare results across agencies and contractors.
In setting up transparent and accountable tender processes, agencies need:
- Good documentation – for example, using the templates provided by Department of Housing and Public Works, which place the responsibility on tenderers to identify parts of their submission which would be of concern to them if released.
- Clear communications with tenderers about RTI and what to expect if they are the successful tenderer, including placing tenderers on notice that a successful tender will form part of the contract, if awarded.2
- When awarding a tender this would also include providing the tenderer with a contract rather than just relying on the initial tender submission.
Documents and records of a tender process
A tendering company may provide a wide range of information relating to the business such as company overviews, brochures, detailed quotes relating to the goods or services, advice on price competitiveness and quality assurance certification. 3 This may include personal information about employees such as their contact details, information about the tenderer’s business systems and service standards, as well as pricing information. The type of information may differ depending on what is required for the tender and the company may also provide additional unsolicited information.
Throughout the process, the agency may record information such as:
- discussions with tenderers prior to the process closing
- the process followed in evaluating tenders
- comparative evaluation of short-listed tenders
- the reasons for choosing a particular tenderer
- the debriefing process for unsuccessful tenderers. 4
Proactive publication of tender information
As applications under the Right to Information Act 2009 ( RTI Act ) are intended to be used only as a last resort, 5 access to requested information about a company’s own tender evaluation should be given administratively where possible.
Tenderers are entitled to seek feedback and debrief with the agency after completion of the tender process. As part of the Queensland Procurement Policy 6 and Contract Disclosure Guidelines , affected agencies7 must publish basic details of the successful tenderer for projects over $10 000. The information must include:
- the name and address of the procuring agency
- a description of the goods or services procured
- the date of award or contract date
- the value of the contract or standing offer arrangement
- the name and address of the successful supplier
- the procurement method used.
While specific disclosure requirements apply on certain contracts, it does not change the overriding requirement that business be conducted in as open a manner as possible to permit public scrutiny. The above list should be viewed as a minimum rather than all that is required.
Agencies are also required to include financial information relating to projected and actual income and expenditure, tendering, procurement and contracts in their publication scheme. 8
Processing RTI access applications for tender documents
When an access application is made under the RTI Act for access to tender documents it may be a complex decision making process. There are typically various third parties that must be consulted 9 , such as companies other than those that submitted tenders and individuals who have provided references for a tenderer. As a first position, the decision maker must consider whether they can release the documents in full. However if the decision maker decides they cannot release the documents in full then they will need to:
- consider whether the documents contain exempt information; and
- weigh up the relevant public interest factors favouring both disclosure and non-disclosure.
The RTI Act directs that an agency must have a pro-disclosure bias when processing an access application. This means that an agency must give access to a document unless, on balance, it would be contrary to the public interest to do so. 10 More broadly, the RTI Act creates stronger expectations of transparency and accountability in tendering processes than was the case previously. The RTI Act contains a presumption that all documents, including contracts (in full) are open to the public unless there are good reasons for them not to be.
In the interests of openness and accountability, it is desirable that business with government agencies be conducted in a way that will stand up to public scrutiny. Confidentiality and commercial in confidence clauses should not be used as a matter of course and should only be included where there is good reason for confidentiality.
Decisions under the repealed Freedom of Information Act 1992
Decisions that were made under the repealed Freedom of Information Act 1992 ( repealed FOI Act ) indicate that tender documents may sometimes contain exempt information or information which is contrary to the public interest to release.
Where the provisions in the RTI Act are the same or similar to the repealed FOI Act or inter-jurisdictional legislation, some guidance can be taken from decisions of the Information Commissioner under the repealed FOI Act and from other jurisdictions about applications that relate to tender processes.
It is important to note that a number of the exemption provisions in the repealed FOI Act, which were relevant to tender documents, no longer apply to automatically characterise information as exempt. A number of the categories of information which were relevant to exemption provisions in the repealed FOI Act are now public interest factors favouring non-disclosure to be considered in the public interest balancing process.
Exempt information – breach of confidence
Schedule 3, section 8(1) of the RTI Act states that information is exempt if its disclosure would found an action for breach of confidence. Deciding whether or not information is exempt information under schedule 3, section 8(1) of the RTI Act involves a consideration of whether disclosure of the information could found an action for breach of confidence under the general law.
- It must be possible to specifically identify the information in order to establish that it is secret, rather than generally available information.
- The information in issue must have ‘the necessary quality of confidence’; ie, the information must not be trivial or useless information, and it must have a degree of secrecy sufficient for it to be the subject of an obligation of conscience.
- The information must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it.
- Disclosure to the applicant for access would constitute an unauthorised use of the confidential information.
- Disclosure would be likely to cause detriment to the confider of the confidential information.
Where a contractual term requires confidentiality to be maintained, disclosure of information may, in itself, only found an action for breach of contract, but would not be sufficient to establish a breach of confidence unless the five elements outlined above are also satisfied. 12
When would information generally not be considered confidential?
Information in tender documents is unlikely to be considered confidential if it:
- contains little sensitive detail or is generic in nature 13
- is common knowledge in the particular industry 14
- is common knowledge or already in the public domain 15 (such as through a tenderer's own website, press releases, or its promotional activities and literature).
Further, a request for confidential treatment of information does not mean that it is automatically ‘confidential’. Each of the five elements outlined above need to be satisfied.
Simply marking envelopes and documents as “private and confidential” or “commercial in confidence” will not on its own make the information confidential and may not even amount to an express request for confidential treatment of documents. 16
Even if the information can be characterised as exempt information under schedule 3, section 8 of the RTI Act, decision makers still have the discretion under section 48(3) of the RTI Act to give access to the information.
Considering the public interest
If there is no exempt information in the documents, the decision maker will need to consider and balance public interest factors favouring disclosure and non disclosure to determine whether it is contrary to the public interest to release the information. 17 Each of the public interest factors requires that there be a reasonable expectation (one that is not irrational, absurd or ridiculous) 18 that disclosure of the information would have the effect described in the factor. Some relevant public interest factors relating to tender documents are considered below.
Factors favouring disclosure
It is likely that there will always be public interest considerations favouring disclosure of information relating to tender processes. The decision maker will need to balance the public interest factors favouring disclosure against the public interest factors favouring nondisclosure in order to determine whether the information is appropriate for release. 19
Public interest factors favouring disclosure relevant to tender documents are likely to be those relating to the openness and accountability of government. Public sector agencies are accountable to the public for decisions they make to award tenders for the performance of work that it is to be paid for from public funds.
Agencies must be able to demonstrate that tender processes have been carried out fairly and equitably and that the successful organisations were the best candidates in relation to mandatory requirements for the projects and will be able to offer efficiency, effectiveness and economy in the delivery of services to be paid for from public funds. 20 An example of public interest factors favouring disclosure which may apply to tender documents, or parts of tender documents are:
- Schedule 4, part 2, item 4 of the RTI Act: Disclosure of the information could reasonably be expected to ensure effective oversight of public funds.
- Schedule 4, part 2, item 11 of the RTI Act: Disclosure of the information could reasonably be expected to reveal the reason for a Government decision and any background or contextual information that informed the decision.
When deciding precisely what information should or should not be disclosed, such considerations have to be weighed against the adverse consequences for a tenderer in regards to the disclosure of commercially sensitive information. Generally, the public interest will favour disclosure 21 of information about:
- the standards of service, and performance indicators, in the contract with the successful tenderer 22
- the accountability of the agency regarding the conduct of the tender process and the decisions made in relation to awarding the tender on which public funds will be expended 23
- the type of services a government has decided should be delivered by a contracted service provider 24
- the total price tendered by the successful tenderer 25
- other issues of accountability such as: 26
- price payable by the public
- details of significant guarantees and undertakings by the chosen service provider as to service quality
- details of any transfer of assets between the government and the service provider
- the results of any cost-benefit analyses.
Factors favouring nondisclosure
Schedule 4, part 4, item 7 – public interest harm to disclose trade secrets, business affairs or research
Parliament has determined that the disclosure of any trade secret (defined below) could reasonably be expected to cause a public interest harm. 27 The decision maker must determine how much public interest harm there would be to disclose the information by also considering any other public interest factors. 28
Section 45 of the repealed FOI Act provided an exemption for information which would disclose a trade secret or information which would prejudice certain business affairs. The public interest harm factor in schedule 4, part 4, item 7 of the RTI Act is in similar terms to section 45 of the repealed FOI Act but is simply a factor to take into account in the public interest balancing process, and is not necessarily determinative.
Guidance can be taken from previous decisions of the Information Commissioner and other case law to appropriately consider schedule 4, part 4, item 7 of the RTI Act.
Disclosing a trade secret – item 7(1)(a)
A trade secret is different from the concept of ‘confidential information’ (as discussed above) because a trade secret must be able to be put to advantageous use by someone who is involved in a particular industry or trade. 29
Factors that have been accepted as being indicative of information that constitutes a trade secret include: 30
a) the extent to which the information is known outside the business
b) the extent to which the information is known by employees and others involved in the business
c) measures taken to guard the secrecy of the information 31 d) the value of the information to the business and its competitors
e) the amount of effort or money spent by the owner in developing the information
f) the ease or difficulty with which the information could be acquired or duplicated. 32
Information that would generally not be considered a ‘trade secret’
Categories of information that have not qualified as a trade secret include:
- broad and general statements of principles and intents of the company and basic company policies (such as employee safety, rehabilitation, industrial relations etc) 33
- generally the dimensions of products and parts of products which are already on the market (they may be able to be inspected and ‘reverse‑engineered’) 34
- matters which are public knowledge or are general knowledge within an industry 35
- information which is already available to the public (for example, information that has patent protection and the specifications are available to view by the public). 36
If the information in issue does not qualify as a trade secret, it is possible that schedule 4, part 4, item 7(1)(b) or item 7(1)(c) may be relevant.
A decision maker can only consider disclosure of specific information as a public interest harm under one of the subsections in schedule 4, part 4, item 7. The RTI Act explicitly prevents the same information being considered a public interest harm to disclose under more than one of the provisions in schedule 4, part 4, item 7 (see item 7(b)(i) and item 7(c)(i)).
Disclosing business affairs – item 7(1)(b)
Schedule 4, part 4, item 7(1)(b) provides that disclosing information of commercial value, where it would destroy or diminish the commercial value of the information, would be a public interest harm.
It is accepted in Queensland law that information can have commercial value to an agency or another person if:
- the information is valuable for the purposes of carrying on the commercial activity in which the agency or person is involved. The information may be important or essential to the profitability or viability of continuing business operations or a one-off commercial transaction; or
- there is a genuine market for the sale of such information and that market would be destroyed if the information was disclosed. 37
If it is considered that the information is commercially valuable, the second limb of schedule 4, part 4, item 7(1)(b)(ii) must also be considered to determine whether disclosure of such information could reasonably be expected to diminish or destroy the commercial value. There must be a reasonable expectation that disclosure of the information would be likely to diminish or destroy its commercial value. A merely speculative, irrational or absurd reason is not sufficient when considering whether disclosure would diminish or destroy the commercial value of the information. 38
Information contained in tender documents is unlikely to satisfy the requirements of schedule 4, part 4, item 7(1)(b) if:
- the information is available to the public or already public knowledge 39
- the information in question is purely the structure or presentation of the tender that shows no particular innovation or style that influences the choice of tenderer and simply complies with the tender requirements 40
- the information has lost any value it may once have had by virtue of the conclusion of the tender process 41
the information is aged or out of date. 42
Whether something is considered aged or out of date is likely to vary depending on what the information specifically relates to. In Wanless Wastecorp, the Information Commissioner decided that customer lists often possess commercial value. However, in this instance they were almost three years old and many of the contracts were expired, so it was considered that there was no particular commercial sensitivity remaining. 43
In the same case the Information Commissioner considered a wholesale pricelist. Despite the three year period, the Information Commissioner decided that the economic environment in relation to specific information (recyclable waste) had not moved substantially to diminish the commercial sensitivity of the information. 44
The amount of time and money that has been invested into the preparation of certain information is not, in itself, a sufficient indicator that the information has commercial value. 45 While the expense may be a relevant factor ; if the cost was considered sufficient on its own, most, if not all, of the documents produced by a business would have ‘commercial value’ because resources were expended in their production. 46
Prejudice to future supply of like information – item 7(1)(c)
For this public interest harm factor to apply, there must be a reasonable expectation (not just speculation), that disclosure of the information in issue could have an adverse effect on the business, professional, commercial or financial affairs of the tenderer or could prejudice the future supply of similar information to government.
There are two limbs to schedule 4, part 4, item 7(1)(c), both of which must be satisfied in order to prove the public interest harm in disclosure of the information.
The first requirement is that disclosure of the information would disclose information concerning the ‘business, professional, commercial or financial affairs of an agency or another person’.
‘Business, professional, commercial or financial affairs’ are not defined in the RTI Act but examples from decided cases give some guidance as to the types of information that may be considered to fall within the meaning of those terms 47:
- information as to a company's pricing structure 48
- information gathered to prove the efficacy or otherwise of a product manufactured by a company, including health and safety information on a particular drug gathered by a pharmaceutical company 49
- information supplied by Tasmanian wood chipping companies to State and Commonwealth agencies, in the nature of operating and financial information, including future strategies, anticipated export market movements, selling prices of produce and overseas customers. 50
The link that exists between business, professional, commercial or financial affairs is that they are all conducted by an organisation with a view to creating profit or income. It could therefore be assumed that any adverse effect on these affairs would be in the form of some negative financial repercussions. 51
If an agency determines that releasing certain information would result in disclosing the business, professional, commercial or financial affairs of an agency or another person, the second limb of schedule 4, part 4, item 7(1)(c)(ii) must then be considered. The agency must consider whether there is a reasonable expectation that the disclosure of such information would have an adverse effect on those affairs or would prejudice the future supply of such information to government.
Section 45(1)(c)(ii) of the repealed FOI Act was considered in Cannon in relation to tender documents. The Information Commissioner suggested that it is unlikely that there would be a reasonable expectation that disclosure of information would adversely affect the business, commercial or financial affairs if:
- the information is common knowledge within the relevant industry 52
- the company is in a monopoly position for particular goods or services and has no competition in the market; 53 or
- the information is already in the public domain. 54
The agency must also consider whether the disclosure of the business, professional, commercial or financial affairs could reasonably be expected to prejudice the future supply of such information to government. In order to satisfy this limb, it must be shown that a substantial number of the sources of information could reasonably be expected to refuse to provide like information in the future, if the information in issue were to be disclosed. 55
Factors which may remove a reasonable expectation that disclosure would prejudice the future supply of such information to government may be:
- the fact that it is necessary, or there is a strong incentive, to supply the information in order to obtain some benefit from the government (such as the award of a government contract) 56
- the fact that the individual supplier would be disadvantaged if it failed to supply the information 57
- the fact that the organisation is under an obligation to supply such information to government (for example, where there is a statutory power to compel the disclosure of the information). 58
APPENDIX: Typical tender information and how the RTI Act may apply to it
|Personal information of staff (achievements with the company, qualifications, contact details etc)|
Is the information is already in the public domain (for example, on the company’s website or in brochures)?
Would it prejudice and individual’s right to privacy? Balance this against factors favouring disclosure.
Public interest favouring nondisclosure may not be given as much weight if information is publicly available.
Find in favour of disclosure if the public interest favours disclosure or the public interest is even.
|Business systems and service standards|
Is this information indicative of what the tenderer has the capability to offer or is it service standards and performance indicators that the tenderer has been contracted to fulfil?
The public interest may favour disclosure if the information is simply indicative of what the tenderer can offer.
The public interest may favour nondisclosure if:
The nature and detail of the pricing information?
Is it current?
What is the nature and custom of the particular market?
Is it the total price (ie, price quotes a lump sum) or does it provide individual prices for different services?
Any other relevant factors?
The public interest will depend on the circumstances of each case. Generally the disclosure of the lump sum amount of the quote would not be contrary to the public interest to release.
Disclosure of the level of detailed costing information available in the quoted unit rates may be considered contrary to the public interest to release. Consider whether it would assist a competitor to make more informed estimates of the unit rates likely to be submitted by the entity in future tenders where the same, or similar, items are included in the tender documents published by the agency. 59
|Successful tender information|
Government agencies are accountable to the public for the decisions they make in awarding tenders for performance of work using tax payers’ dollars.
What information has already been released publicly?
What was the tenderer informed of in the conditions of offer/contract about what information would be made available?
Consider whether there is any exempt information or contrary to the public interest information.
Generally the public interest will weigh in favour of releasing more details about the successful tenders than unsuccessful tenderers (see below). Tenderers should be advised of this during the tender process.
|Unsuccessful tenderer information|
Will releasing some of the information demonstrate that the agency made a fair decision about the successful tenderer?
Consider whether there is any exempt information or contrary to the public interest information.
There may be a lesser public interest in disclosing particular information if the tenderer was unsuccessful as the government is not engaging in a contract with the company.
Further to this it was decided in Wanless Wastecorp that where the information relates to referee scores in relation to the satisfaction of customers in relation to the unsuccessful tenderer the disclosure could have an adverse effect on the unsuccessful tenderers business, commercial or financial affairs. 60
1 Based on information in the Queensland Procurement Policy (June 2013)
2 Huang and Redland City Council (Unreported, Queensland Information Commissioner, 8 September 2010) ( Huang and Redland City Council ) at .
3 Based on information in the guideline 'Selling to the Queensland Government'
4 Based on information in the guideline 'Evaluating Offers in Purchasing' which was prepared by the Department of Housing and Public Works.
5 As outlined in the preamble to the RTI Act.
6 Clause 27 of the Queensland Procurement Policy.
7 See the Queensland Procurement Policy for guidance on what is an 'affected agency'
9 Under section 37 of the RTI Act.
10 Section 44 of the RTI Act.
11 Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279 ( Re B )  –  .
12 TSO08G and Department of Health (Unreported, Queensland Information Commissioner, 13 December 2011) at paragraph 12. See Callejo and Department of Immigration and Citizenship  AATA 244 at paragraphs 163-166.
13 For example in Wanless Wastecorp Pty Ltd and Caboolture Shire Council; JJ Richards and Sons (Third Party) (2003) 6 QAR 242,  , ( Wanless Wastecorp) it was decided that broad statements of intent that were taken from the Industrial Relations policy were considered ‘generic in nature’.
14 Wanless Wastecorp .
15 In Macrossan & Amiet Solicitors and Department of Health (Unreported, Queensland Information Commissioner, 27 February 2002) (Macrossan) the Information Commissioner considered that details such as number of partners and staff, division of the firm and general information about qualifications would be information that is already in the public domain as it is common practice for law firms to promote this type of information.
16 Macrossan  – .
17 Section 49 of the RTI Act.
18 As determined in Attorney General and Cockroft (1986) 64 ALR 97, 106 (Cockcroft) .
19 See the guideline Public interest balancing test for further information.
20 ‘Selling to the Queensland Government’
21 These categories have been developed based on public interest considerations that were discussed in decisions under the repealed FOI Act relating to tender processes. These categories may not be applicable in each situation and every application should be considered on its own facts and merits.
22 Wanless Wastecorp .
23 See for example, Macross an ; Wanless Wastecorp ; and Dalrymple Shire Council and Department of Main Roads (1998) 4 QAR 474  (Dalrymple) .
24 In a report by the Industry Commission on Competitive Tendering and Contracting by Public Sector Agencies (Report No.48, 24 January 1996, AGPS, Melbourne), paragraph 95 as referred to by the Information Commissioner in a number of decisions such as Wanless  and Dalrymple .
25 As suggested in Sexton Trading Co Pty Ltd and Department of Health; TK Crow Furnishings Pty Ltd (Third Party) (1995) 3 QAR 132  ( Sexton Trading ).
26 As stated in a report by the Industry Commission on Competitive Tendering and Contracting by Public Sector Agencies (Report No.48, 24 January 1996, AGPS, Melbourne) which has been referenced in multiple decisions such as Wanless Wastecorp , Dalrymple  and Macrossan .
27 Explanatory Notes, Right to Information Bill 2009 (Qld) 73.
28 Explanatory Notes, Right to Information Bill 2009 (Qld) 17.
29 Searle Australia Pty Ltd v Public Interest Advocacy Centre and Department of Community Services and Health (1992) 108 ALR 163 ( Searle ) .
30The American Restatement of the Law of Torts (1939, Volume 4) which was relied on by Gowan J in Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd (1967) VR 37.
31 Wanless Wastecorp  and Macrossan .
32These factors have been widely accepted in Queensland when considering what may constitute a trade secret. See for example: Cannon ; Fairfield Constructions Pty Ltd: Fairfield Land Pty Ltd and Department of Environment and Resource Management (Unreported, Queensland Information Commissioner, 23 December 2009) ; Electrical Trades Union and Treasury Department (Unreported, Queensland Information Commissioner, 24 August 2009) .
33 Wanless Wastecorp  – .
34 Searle , 173.
35 The American Restatement of the Law of Torts (1939, Volume 4, paragraph 757) which was relied on by Gowan J in Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd (1967) VR 37.
36 GSA Industries (Aust) Pty Ltd and Brisbane City Council; GS Technology Pty Ltd (Third Party) (1994) 2 QAR 49 .
37 Originally proposed in Cannon  – . This view is supported by cases such as Wanless Wastecorp ; Macrossan ; Boully and Department of Natural Resources; Stevenson Financial Corporation Pty Ltd (Third Party); Stevenson (Fourth Party) (1998) 4 QAR 236 ; Luder and Fraser Coast Regional Council (Unreported, Queensland Information Commissioner, 7 April 2009)  (Luder).
38 Cockcroft, 106.
39 Cannon ; Wanless Wastecorp .
40 Macrossan .
41 Wanless .
42 Wanless Wastecorp .
43 Wanless Wastecorp .
44 Wanless Wastecorp  – .
45 Cannon .
46 Cannon .
47 Cannon .
48 See Re Drabsch and Collector of Customs , Commonwealth AAT, No. Q84/77, Deputy President Forgie, 5 November 1990, unreported, at p.46, paragraph 88.
49 See Re Public Interest Advocacy Centre and Department of Community Services and Health and Schering Pty Ltd (1991) 23 ALD 714, 725 .
50 See Re Angel and Department of Arts, Heritage and Environment (1985) 9 ALD 113.
51 Wanless Wastecorp .
52 Cannon .
53 Cannon .
54 Cannon .
55 Re B ,  in which the Information Commissioner considered the relevant phrase in the context of section 46(1)(b) of the repealed FOI Act, which was later adopted in relation to section 45(1)(c)(ii) of the repealed FOI Act in Queensland Gridiron Football League Inc. and Department of Tourism, Sport and Racing; Reilly (Third Party) (1994) 2 QAR 230, .
56 Re B, .
57 Re B, .
58 Re B, .
59 See Sexton Trading at paragraph 16 and Dalrymple at paragraph 41 for further information.
60 Wanless Wastecorp .
Current as at: June 29, 2012