Assessment with regards to car park site development bids

Summary

A request for information regarding car park site development bids was made to the Department of Infrastructure, but no information was disclosed as it was deemed exempt under commercial interest provisions.

Key Facts

• The Department of Infrastructure withheld all requested information citing commercial prejudice.
• The Agreement for Sale for the site has not been finalised, meaning the award process is still live.
• The 2016 bidding exercise occurred because the 2015 exercise was stopped due to a bidder's failure to disclose critical information.
• Participants in the 2016 exercise received detailed feedback on their specific bids, including scoring and weighting.
• The authority concluded that the economic interest of the Island would be damaged by releasing the information.

Data Disclosed

• 2017-11-27
• 2017-12-21
• 2015
• 2016
• 3 pages
• 1 document
• section 30(1)(a)
• section 30(1)(b)
• section 30(2)(b)
• section 3.4

Exemptions Cited

• Section 30(1)(a)
• Section 30(1)(b)
• Section 30(2)(b)

Data Tables (1)

Full Response Text

Section 30 is a qualified exemption and therefore subject to both a public interest and a prejudice test; these have been carried out and are summarised below.

This makes the timing of disclosure critical in assessing both the harm (prejudice) and the commercial repercussions of disclosure. The Council of Ministers’ Code of Practice section 3.4 explains that both the severity of harm, and the age of the information can affect the weighting of assessing the balance for or against disclosure

(c) Factors that add weight to the arguments on either side and help decide where the balance of public interest lies include: (ii) Severity of the impact of the prejudice; and

(iii) Age of the information.

In view of this, it is important to be aware that the Agreement for Sale of the site has not been finalised and therefore the award process is still live until this occurs. The 2015 exercise is also related to the 2016 exercise, in that the 2016 exercise only came about because the 2015 exercise was stopped, as a result of a bidder’s failure to disclose certain information critical to that evaluation process.

Participants in the process have been given detailed feedback in relation to their own specific bids for the 2016 exercise, including scoring and weighting.

These facts have relevance to the assessments of both the public interest and the prejudice arguments.

In assessing where the public interest lies and the potential for prejudice (harm), the following factors (many of which are common to both) have been considered and are summarised below.

In favour of disclosure:

 Transparency  Accountability  Promoting Public understanding  Upholding standards of Integrity  Securing the best use of public resources

In favour of maintaining the exemption and withholding the information:

 The need to protect the commercial interests of the public sector in general and the Department in particular. The recognition of the role that protection of public sector commercial interests has in the wider context of the public interest.  The need to protect the commercial interests of the private sector in general and the potential developer in particular. The recognition of the role that protection of private sector commercial interests has in general health of the economy.  The possibility that disclosure of the information would result in the collapse of sale, a loss of job opportunities and a loss of trust and confidence in Government resulting in an effect on future relationships and negotiations and the general health of the Island’s economy.

We believe the economic interest of the Island would be damaged as a result of reputational damage and a loss in confidence in dealing with Government by releasing information which would discourage developers from bidding for future schemes.

Disclosure of the information could cause the potential sale to collapse, resulting in a loss of income for Government. It is also recognised that protection of private sector commercial interests has a direct impact on the general health of the economy. Lack of trust and loss of confidence would severely affect the Government’s ability to seek competitive tenders and pricing in future projects and any breakdown in competitive relationships would also affect future negotiations between Government and potential bidders.

Disclosure of the information would have a harmful effect on the commercial interests of the proposed developer through potential collapse of the sale or the withdrawal from the development of key anchor tenants and investors, again through lack of trust and loss of confidence. This also has the potential to result in a loss of job opportunities.

Having balanced the factors in favour of disclosure with the factors in favour of maintaining the exemption, we consider that the exemptions under section 30(1)(a) and section 30(1)(b) and section 30(2)(b) currently outweighs the public interest in disclosure for this request.

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 to foi.doi@gov.im or by delivery/post to The FOI Co-ordinator, Department of Infrastructure, Sea Terminal Buildings, Douglas, IM1 2RF. An electronic version and paper version of our complaint form can be found by going to our website at www.gov.im/foireview

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; 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 rights to review is 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 https://www.gov.im/about-the-government/freedom-of-information/

Yours sincerely

Freedom of Information Response Team