On 4th October 2005, I made a Freedom of Information request in relation to DETI’s “Production of an E-Business Strategy” consultancy award to Cap Gemini Ernst & Young in December 2000. As part of my request I asked for copies of the unsuccessful tender submissions. This request was passed to the Central Procurement Directorate, who declined my request under the Section 41″Information provided in Confidence” exemption, due to a confidentiality clause in the Terms and Conditions of Contract.

As you are no doubt aware, the guidance on this issue from the Information Commissioner, particularly in the documents on “Public Sector Contracts”, and “Awareness Guidance No 2: Information provided in confidence”, states clearly that a public authority cannot contract out of its responsibilities under the Act and unless information is covered by a specific exemption it must be released if requested.

In relation to a Section 41 exemption, the guidance states that the authority must be satisfied that an actual obligation of confidence exists, and that there is no veto given to third parties who merely object to disclosure. In addition the information withheld must not be trivial or readily available by other means.

I would suggest that even if some portions of the documents in question might indeed have this necessary “quality of confidence”, the majority would not, and that suitably redacted versions could be provided.

I would further argue that it is in the public interest test to release this information. This contract was highlighted as “Case Study G” in the Northern Ireland Audit Office’s report into the use of consultants by the Northern Ireland Civil Service, where it was noted that due to substantial changes to the original specification, and a number of extensions to the project, the cost rose from the original £30,000 to a total of £183,000. It would certainly be in the public interest to discover whether any of this remarkable over-spend was due to issues that should have been ascertained at an earlier stage, and particularly whether any of the unsuccessful tenders had raised any of these issues.

I would therefore ask that you conduct a formal review of the refusal to release these tender submissions. I look forward to hearing from you soon.