Swift v Information Commissioner & Highways England

The Appellant requested disclosure from Highways England under the Freedom of Information Act 2000 (FOIA) of specified information contained within tenders submitted by construction companies to the Department of Transport. The disputed information concerned charges made by contractors to third parties for the costs of repairing damage to highways caused by traffic accidents. These charges were made under Asset Support Contracts. Asset Support Contracts (referred to as “ASCs”) which were contracts by which Highways England procures services from subcontractors in relation to the maintenance and improvements of its road network

Highways England withheld the information relying on s.43 FOIA (prejudice to commercial interests). It contended that disclosure of the requested information would or would be likely to prejudice the commercial interests of the five bidding construction contractors who tendered for the area in issue as well as Highways England’s own commercial interests in effective procurement exercises that obtain good value for money.

The Appellant complained to the Information Commissioner. The Information Commissioner held in Decision Notice FS50684021 dated 23 April 2018 that Highways England was entitled to rely on s.43.

The Appellant appealed to the First Tier Tribunal on the basis that (1) s.43 did not apply to the withheld information; and (2) there was information missing that Highways England asserted they did not hold which they did in fact hold.

1. Was the Information Commissioner correct to conclude that the exemption in s.43 applied to the withheld information?

2. Had Highways England failed to disclose all the information that fell within the scope of the request?

Dismissing the appeal:

1. Applying Hogan v Information Commissioner [2011] 1 Info LR 558 that the approach to be taken was to (a) identify applicable interested within the relevant exemption (b) consider the nature of the prejudice claimed and (c) consider the likelihood of prejudice occurring – namely that it must be ‘real and significant’.
2. There was a real prejudice which was causally connected to the disclosure in three key areas: (i) advantage to competitors. The information was based on detailed methodology of each contractor which was commercially sensitive and publication would give an advantage to other contractors in future bids; (ii) disadvantage in relation to other clients. The rates offered to Highways England were individually negotiated and the negotiating position against other clients would be weakened if the rates offered on a major tender were known; (iii) disruption to the tendering process. The essence of a tender was confidential bids to ensure fair competition and best value for money. This would be distorted if competitors of the five tendering contractors gained knowledge of their previous bids.
3. There was a general public interest in maintaining competitive commercial tenders and ensuring contractors who bid for public sector contracts were not commercially disadvantaged and so continue to participate in tenders. The public interest in maintaining the exemption outweighed the public interest in disclosure.
4. The witness evidence as to the information that fell within the scope of the request was accepted. The Tribunal was satisfied that Highways England did not hold any other information which should have been disclosed.

It is interesting to note that Regulation 21 of the Public Contracts Regulations 2015 (SI 2015/102) provides for a duty of confidentiality in respect of information disclosed in the confidential aspect of tenders but this expressly stated to be subject to the Freedom of Information Act 2000 (in s 21(2)(b)) – which incorporates the s.43 exemption. The Tribunal did not address the issue of whether the inherent commercial interest in confidential tender information in public contracts should be accorded some considerable weight because Parliament has chosen to expressly protect it in this way.