Tender document for Patient Transfer Service

Summary

A request was made for the Invitation to Tender document for the Patient Transfer Service previously operated by Flybe, but the Department of Health and Social Care refused disclosure citing commercial interests.

Key Facts

• The request sought the tender document for patient air transfers from the Isle of Man to Liverpool or Manchester.
• The service was originally operated by Flybe before their collapse and was provisionally taken over by Stobart Air.
• The Department of Health and Social Care withheld the information because the tender process was still live.
• Disclosure was refused under section 30(2)(b) of the Freedom of Information Act to prevent prejudice to commercial interests.
• A complaint regarding this refusal was upheld by the Information Commissioner on 2021-03-18.

Data Disclosed

• 1467973
• 2020-09-11
• 2021-03-18
• 9th October 2020
• s30(2)(b)
• s15
• EA/2006/0006
• 19 February 2007
• IM1 3QA
• (01624) 642621

Exemptions Cited

• Section 30(2)(b) - Prejudice to commercial interests

Original Request

I would like to see a copy of the tender document that formed the basis of tenders for the Patient Transfer Service that previously had been operated by Flybe. Clarification sought: In order to identify and locate the information that you have asked for we need some further information from you. In particular, it would be helpful to know which tender document you are referring too; please can you provide an approximate date? Clarification received: I'm looking to see the Invitation to Tender for the Patient Transfer Service which is the provision of seats on an airline to carry patients from IOM to Liverpool and/or Manchester when requiring treatment or appointments in the UK. This had been operated by Flybe, but as a result of their collapse it was provisionally picked up by Stobart Air to maintain a level of continuity, but subsequently an Invitation to Tender (ITT) was issued to set up a long term contract. I am not looking for any details on who applied, or any confidential issues - simply the terms of the tender. As far as the date is concerned I'm not exactly sure when it was issued, but I believe it likely to have been some time in Spring.

Data Tables (1)

Full Response Text

Interim Chief Executive: Kathryn Magson Freedom of Information Team Crookall House Demesne Road Douglas Isle of Man IM1 3QA

Tel: (01624) 642621 Email: dhsc@foi.gov.im Website: www.gov.im/dhsc Our ref: 1467973 9th October 2020

Dear ###

We write further to your request which was received on the 11th September 2020 and states:

"I would like to see a copy of the tender document that formed the basis of tenders for the Patient Transfer Service that previously had been operated by Flybe. Clarification sought: In order to identify and locate the information that you have asked for we need some further information from you. In particular, it would be helpful to know which tender document you are referring too; please can you provide an approximate date? Clarification received: I'm looking to see the Invitation to Tender for the Patient Transfer Service which is the provision of seats on an airline to carry patients from IOM to Liverpool and/or Manchester when requiring treatment or appointments in the UK. This had been operated by Flybe, but as a result of their collapse it was provisionally picked up by Stobart Air to maintain a level of continuity, but subsequently an Invitation to Tender (ITT) was issued to set up a long term contract. I am not looking for any details on who applied, or any confidential issues - simply the terms of the tender. As far as the date is concerned I'm not exactly sure when it was issued, but I believe it likely to have been some time in Spring." Our Response While our aim is to provide information whenever possible, in this instance the information is exempt from disclosure under s30(2)(b) of the Act as its disclosure would, or would be likely to, prejudice the commercial interests of a person (including the public authority holding it).

Pursuant to s15 of the Act, the duty to provide advice and assistance, s30(2) is a class- based exemption and only applies to the specified category or class of information, in this instance the Non-urgent Patient Transfers (Air) Invitation to Tender (ITT) is currently a live process, therefore disclosure at this time may prejudice the commercial interests of a person (including the public authority – in this instance, the Department of Health and Social Care holding it). Please note, Commercial Interests is not defined under Freedom of Information and usually relates to the commercial trading of a person, for example the sale and purchase of goods or services usually within some form of competitive environment. • Section 30 Please note, s30 is a class based exemption and cannot be engaged unless the information concerned falls within the class of information described by the exemption. In line with the terms of this exemption under the Act, we have considered whether it would be in the public interest for us to provide you with the information, despite the exemption being applicable. In this case, we have concluded that the public interest favours withholding the information as the tendering process is still live (in process). As s30 is a class based exemption it is subject to a public interest test. When assessing whether or not it was in the public interest to disclose the information to you, we took into account the following factors: Factors in favour of disclosure • Disclosure of the information would support transparency and promote openness and accountability to the general public • Disclosure to the public would fulfil and educative function about the Department of Health and Social Care tendering process • In UK Department for Education and Skills v Information Commissioner and the Evening Standard (EA/2006/0006 19 February 2007), the DfES had argued (paragraph 45) that Parliament had accepted that any disclosure of information covered by a class-based exemption (in this case section 35(1)(a), the formulation and development of government policy) caused some damage to the public interest. The Tribunal rejected this argument They said at paragraph 63: “In our judgement, inclusion within such a class of information simply indicates the need and the right of the public authority to examine the question of the balance of public interests when a request under s.1 is received. Often such examination will be very brief because disclosure poses no possible threat to good government.” In other words, the fact that the information fell within the exemption was simply a trigger to consider the public interest; it did not imply that there was a public interest in not disclosing it.

Factors in favour of withholding • Release of the information at this stage might generate misinformed debate in areas where future options have yet to be finalised. This would affect the ability of officials to consider any tenders and/or advice away from external pressures, in this instance the award of the contract. • It is important that this information is protected by a safe space. Premature disclosure of this information may limit the willingness of commercial entities to participate. This would hamper and harm the on-going tendering process; especially in regards to the provision of UK based health care. In taking these factors into account the Department has determined that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing the information. The Department, having considered the exemption and assessed the weighting of the public interest, including the risk of harm from disclosure, has concluded that the public interest is better served in maintaining the exemption at this time during the on- going tendering process. However, once the tendering process is completed and formalised, the Department would reconsider the application of s30(2)(b) and disclosure of the requested ITT. The Department will contact you in one (1) calendar month to provide an update to the status of the application of s30(2)(b). Please quote the reference number 1467973 in any future communications.

Your right to request a review

If you are unhappy with this response to your freedom of information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post.

An electronic version of our complaint form can be found by going to our website at https://services.gov.im/freedom-of-information/Review . If you would like a paper version of our complaint form to be sent to you by post, please contact me and I will be happy to arrange for this. Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded.

If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on; 1. Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act 2015; or 2. Whether we are justified in refusing to give you the information requested.
In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision.

More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about freedom of information requests can be found at www.gov.im/foi.

I will now close your request as of this date.

Yours sincerely