PUBLIC PROCUREMENT&

FREEDOM OF INFORMATION ACT

Presented by : SIOBHAN KENNY

PUBLIC PROCUREMENT AND THE FREEDOM OF INFORMATION ACT

• Government Contracts – mainstay• Tendering – expensive and time-

consuming• What information are you entitled to• General procurement law• Freedom of Information

PROCUREMENT AND RIGHTS TO INFORMATION

• Procurement rules apply to all state procurement

• Above threshold stringent compliance with directives and regulations OJ; standstill; remedies

• Information: Unsuccessful – why – who won - comparative analysis. To allow understanding of how the decision has been made.

• SI 329 2006 – General Procurement Regulations

• SI 130 2010 – Remedies Directive Regulations -30 days

BELOW THRESHOLD

• EU rules still apply, fairness, transparency, non-discrimination

• Circular 10/10 SME involvement

• Advertise works contract 50,000 + • Open procedure 250,000 and below (i.e. no pre-

qual. • Circular 10/10 guidance only – not mandatory –

Section 7 – ‘constructive de-briefing’

SECTION 7 CIRCULAR 10/10

“Constructive de-brief”

•Failure to apply EU principles - challenge ?•Sidey v Clackmannashire Council – EU principles apply cross border

•Section 69 Local Government Act 2001 “when performing its functions a local authority shall have regard to Policies and objectives of the Government …. In so far as they may affect or relate to its function”

FREEDOM OF INFORMATION ACT 1997

“An Act to enable members of the public to obtain access, to the greatest extent possible consistent with public interest and the right to privacy to information in the possession of Public Bodies and to enable persons to have personal information relating to them in the possession of such bodies corrected and accordingly to provide for a right of access to records held by such bodies, for necessary exceptions to that right and for assistance to persons to enable them to exercise it, to provide for the independent review both of decisions of such bodies relating to that right and of the operation of this act generally (including the proceedings of such bodies pursuant to this act) and for those purposes to provide for the establishment of the Office of Information Commissioner and to define its function, to provide for the publication by such bodies of certain information about them relevant to the purposes of this act, to amend the Official Secrets Act 1963 and to provide for related matters.”

FREEDOM OF INFORMATION

• Access

• Correction of misleading personal information

• Reasons for Decisions made

• Information Commissioner establishment

BODIES COVERED

• Government Departments

• Most State Agencies (NRA;RPA;OPW)

• All Local Authorities

The Heart of the Freedom of Information Act

Section 6.1Subject to the provisions of this Act every person has a right to and shall on request therefore be offered access to any record held by a Public Body and the right so conferred is referred to in this Act as the right of access.This provision – the right of access – lies at the heart of the FOI Act.

WHO USES THIS ACT ?

FOI is used by members of the public, commercial entities and to a great effect by journalists. Expenses; Salaries; Investigative journalism

Transparency in government

Definition of “RECORD”

“includes any memorandum, book, plan, map, drawing, diagram, pictorial or graphic work or other document, any photograph, film or recording (whether of sound or imagines or both) any form in which data (within the meaning of the Data Protection Act 1988) are held, any other form (including machine readable form) or thing in which information is held or stored manually, mechanically or electronically and anything that is part or a copy in any form of any of the foregoing or is a combination of two or more of the foregoing.”

EXEMPTIONSAND EXCLUSIONS

•Part III of the Act Sections 19 – 32 •cabinet discussions; defence information; state bargaining position; contempt of court or breach of privilege; commercial interests of 3rd parties; confidential information•Section 46 of the Act e.g records held by court; records re the president; private records of TDs/Senators; records already publicly available •Administrative reasons - volume

THE PROCEDURE: INITIAL REQUEST

• The Request for Access; • Head of Agency Request under FOI;

• Identify the records; • Fee (€15.00);

THE PROCEDURE: INITIAL REQUEST

• Response / receipt within 10 days;

• Details of rights;

• Deal with – 20 days.

THE PROCEDURE: INITIAL REQUEST

Decision to Grant Request:•Within 20 Days •Details of decision;•Identify the decision maker;•List the records covered by the request;•Indicate the manner in which records are to be provided;•Costs of same.

THE PROCEDURE: INITIAL REQUEST

Decision to Refuse Request•Within 20 Days •Details of decision;•Identify the decision maker;•Reasons for decision;•Section(s) of the Act relied on;•Internal review procedure detail

THE PROCEDURE: INTERNAL REVIEW

• Higher authority within the agency

• €75

• Time limits for appeal

• Decision within15 days of submission

THE PROCEDURE: INTERNAL REVIEW

Decision to Grant•Within 15 Days of submission •Details of decision;•Identify the decision maker;•List the records covered by the request;•Indicate the manner in which records are to be provided;•Costs of same.

•Procedure in letter

•Appeal to Office of the Information Commissioner

THE PROCEDURE: INTERNAL REVIEW

Decision to Refuse•Within 15 Days of submission •Details of decision;•Identify the decision maker; •Appeal Procedure in letter; •Costs of same;•Appeal to Office of the Information Commissioner

OFFICE OF THE INFORMATION COMMISSIONER

Functions

•Appeals •Advice to Government re Freedom of Information •Review of operation •Written decisions – on website

THE PROCEDURE: APPEAL TO INFORMATION

COMMISSIONER • €150.00;• Appeal by letter – set out detail; • Copies of all exchanges with state

agency;• 3 months “in as far as practicable”• Appeal to High Court

OIC AND RELEASE OF INFORMATION RE TENDERS

OIC decision 25th June 2001 – guidance

•Tenders confidential pending award

•Prices remain commercially sensitive and exempt

•After award, price, quality and quantity information from successful tenderer may lose confidentiality •Other confidential information remains so

•Unsuccessful tenderer information remains confidential

•Case by Case basis.

SUMMARY

Procurement law - general•Above threshold access to information – mandatory de-briefing – usually by letter •Below threshold “constructive de-briefing” encouraged – not mandatory

FREEDOM OF INFORMATION

• Right of access• Records • Exclusions and exemptions set out in

the Act• Third Party commercially sensitive

information• User friendly• Information on process available on line • Relatively low fees• Tight timelines for compliance

SUMMARY State agencies recognise their serious obligations under Freedom of Information and will usually make provision in documents such as instructions to Tenderers to enable them to comply with such obligations.

If you want to take steps to protect your information – ensure that in your submission, confidential information is clearly marked. Your tender, once submitted to a state agency, becomes a record for the purposes of the FOI 1997.

SPECIFIC QUERY

Can details of pricing structures, product specification etc be protected from third party access under FOI?Yes if:a)Record contains trade secretsb)Record contains financial, commercial, scientific or technical or other information

i) disclosure of which – expected to result in material loss/gain to person to whom it relatesii)could prejudice competitive decision making of that person

c) Disclosure could prejudice contractual negotiations for that person

If state agency wants to release can only do so if:•Affected person consents•Information publicly available•Affected person advised when providing that information may be released under FOI•State agency believes public interest better served – affected person must be consulted – no agreement to release – OIC decides.