Mr Derrick Rawson and Perth and Kinross Council (Bill of quantities...)

Factual and Procedural Background

On 12 May 2017, the Appellant made a request to Company A for the costings contained within a bill of quantities supplied by Company B relating to a specified piece of work instructed by Company A. Company A responded on 29 May 2017, withholding the information under section 33(1)(b) of the Freedom of Information (Scotland) Act 2002 (FOISA), claiming disclosure would likely cause substantial prejudice to the commercial interests of Company B. The Appellant requested an internal review on 4 June 2017, disagreeing with the exemption claim. Company A upheld its original decision on 16 June 2017. The Appellant then applied to the Commissioner for a decision on 20 June 2017, dissatisfied with the review outcome. The Commissioner accepted the application as valid, notified Company A, and obtained the withheld information and submissions before making a decision.

Legal Issues Presented

1. Whether the withheld information, specifically the pricing details in the bill of quantities, is exempt from disclosure under section 33(1)(b) of FOISA on the grounds that its disclosure would, or would be likely to, cause substantial prejudice to the commercial interests of Company B.
2. Whether the public interest in maintaining the exemption outweighs the public interest in disclosure as required by the public interest test under section 2(1)(b) of FOISA.

Arguments of the Parties

Appellant's Arguments

• The Appellant disagreed that the information was exempt from disclosure.
• No specific detailed submissions were provided by the Appellant in support of this view.

Company A's Arguments

• The withheld information comprises unit costs and total amounts charged by Company B for each item of work, reflecting Company B's costs, charging policies, and profit margins.
• Disclosure would substantially prejudice Company B’s commercial interests by revealing core pricing information, which is commercially sensitive and provided under an expectation of confidentiality.
• Disclosure would give Company B’s competitors an unfair advantage in bidding processes, threatening Company B’s commercial viability.
• Company A’s own commercial interests would be prejudiced to a lesser extent, particularly regarding loss of trust from existing and potential suppliers.
• The Council highlighted that the work had not started, so the rates were current, increasing the risk of prejudice if disclosed.
• Company A operates under procurement regimes requiring confidentiality, and it is generally recognised that detailed current job/task rates are commercially sensitive.
• The public interest is served by maintaining confidentiality to allow Company B to trade fairly and competitively.
• The public interest is satisfied to some extent by prior disclosure of the overall total cost of the work.
• The issue is of limited general public interest, primarily concerning a local dispute unrelated to the costs or work requested.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Commissioner considered the withheld pricing information and submissions from both parties. She accepted that the information relates to the commercial interests of Company B, constituting core pricing structure details that reveal how Company B formulates prices for contracts and tenders. The Commissioner found that disclosure would be likely to cause substantial prejudice to Company B’s commercial activities, particularly by undermining its ability to compete effectively in future tenders, thus threatening its commercial viability. The Commissioner acknowledged the importance of confidentiality in procurement processes and the commercial sensitivity of current pricing information.

Regarding the public interest test, the Commissioner recognised the general public interest in transparency and accountability, especially in public spending. However, she balanced this against the public interest in preserving fair competition and a viable commercial environment for Company B. The Commissioner found that the public interest in maintaining the exemption outweighed the interest in disclosure, as disclosure would unfairly disadvantage Company B in the competitive market. Consequently, the exemption under section 33(1)(b) of FOISA was properly engaged, and the withheld information was rightfully exempt from disclosure.

Holding and Implications

The Commissioner held that Company A complied with FOISA by withholding the requested information under section 33(1)(b).

The direct effect of this decision is that the pricing details contained in the bill of quantities remain exempt from disclosure, protecting the commercial interests of Company B. No new legal precedent was established, and the decision confirms the application of section 33(1)(b) in circumstances involving commercially sensitive pricing information held by a public authority.