This morning I received a letter from the Central Procurement Directorate in relation to one of my Freedom of Information requests. When I requested information on the DETI “Production of an E-Business Strategy” contract (contract price £30k, actual spend £183k), one of the things I asked for was the unsuccessful tenders. This was passed to the CPD, who are withholding the information due to confidentiality clauses:

I am writing to advise that the Department has decided not to disclose the information you requested on 4 October 2005.

Your request to be provided with copies of the unsuccessful tender submissions in respect of the contract for the ‘Production of an E-Business Strategy’ commissioned by the Department of Enterprise, Trade and Investment has been treated as a Freedom of Information request and processed accordingly. However, I would advise that the Terms and Conditions of Contract’ contain a confidentiality clause to which all suppliers have signed up.

The confidentiality clause states that each party will treat all information obtained from the other party in connection with the contract as confidential and that none of this information can be disclosed without the prior written consent of the other party.
Section 41 of the Freedom of Information Act (Information provided in Confidence) states that where a person who holds information is under a duty to keep that information confidential there will be a breach of confidence if that person makes an unauthorised disclosure of that information.

Accordingly, Central Procurement Directorate (CPD) has approached the unsuccessful tenderers to seek their consent to disclosure of the requested information. All have indicated that they do not wish their tender documents to be released as the information contained therein relates to their innovative/creative approach to undertaking the requirement. Consequently CPD has taken the decision not to release the information sought by you.

You have the right to request a formal review by the Department in respect of this decision and if you wish to do so, please write to the Departmental FOI Appeals Manager, Information Management Unit, 1st Floor Rosepark Annex, Upper Newtownards Road, Belfast, BT4 3NR.

If after such an internal review you are still unhappy with the response, you have the right to appeal to the Information Commissioner at Wycliffe House, Water Lane, Wilmslow, CHESHIRE SK9 5AF, who will undertake an independent review.
If you have any queries about this letter, please contact me. Please remember to quote the reference number above in any future communications.

As far as I can remember the Information Commissoner provided guidance for just this sort of thing, which states that blanket confidentiality clauses in public sector contracts are a Bad Thing(tm). Now I need to go do some research …