Transcript Public Procurement & Freedom of Information Act

PUBLIC PROCUREMENT
&
FREEDOM OF
INFORMATION ACT
Presented by :
SIOBHAN KENNY
PUBLIC PROCUREMENT AND
THE FREEDOM OF
INFORMATION ACT
• Government Contracts – mainstay
• Tendering – expensive and timeconsuming
• What information are you entitled to
• General procurement law
• Freedom of Information
PROCUREMENT AND RIGHTS TO
INFORMATION
• Procurement rules apply to all state procurement
• Above threshold stringent compliance with directives and
regulations
OJ; standstill; remedies
• Information:
Unsuccessful – why – who won - comparative analysis.
To allow understanding of how the decision has been
• SI 329 2006 – General Procurement Regulations
• SI 130 2010 – Remedies Directive Regulations -30 days
made.
BELOW THRESHOLD
• EU rules still apply, fairness, transparency, nondiscrimination
• Circular 10/10 SME involvement
• Advertise works contract 50,000 +
• Open procedure 250,000 and below (i.e. no pre-qual.
• Circular 10/10 guidance only – not mandatory –
Section 7 – ‘constructive de-briefing’
SECTION 7 CIRCULAR 10/10
“Constructive de-brief”
• Failure to apply EU principles - challenge ?
• Sidey v Clackmannashire Council – EU principles
apply cross border
• Section 69 Local Government Act 2001
“when performing its functions a local authority
shall have regard to Policies and objectives of the
Government …. In so far as they may affect or relate
to its function”
FREEDOM OF INFORMATION ACT
1997
“An Act to enable members of the public to obtain access, to the
greatest extent possible consistent with public interest and the right to
privacy to information in the possession of Public Bodies and to enable
persons to have personal information relating to them in the possession
of such bodies corrected and accordingly to provide for a right of access
to records held by such bodies, for necessary exceptions to that right
and for assistance to persons to enable them to exercise it, to provide
for the independent review both of decisions of such bodies relating to
that right and of the operation of this act generally (including the
proceedings of such bodies pursuant to this act) and for those purposes
to provide for the establishment of the Office of Information
Commissioner and to define its function, to provide for the publication
by such bodies of certain information about them relevant to the
purposes of this act, to amend the Official Secrets Act 1963 and to
provide for related matters.”
FREEDOM OF INFORMATION
• Access
• Correction of misleading personal
information
• Reasons for Decisions made
• Information Commissioner establishment
BODIES COVERED
• Government Departments
• Most State Agencies (NRA;RPA;OPW)
• All Local Authorities
The Heart of the Freedom of
Information Act
Section 6.1
Subject to the provisions of this Act every
person has a right to and shall on request
therefore be offered access to any record held
by a Public Body and the right so conferred is
referred to in this Act as the right of access.
This provision – the right of access – lies at the
heart of the FOI Act.
WHO USES THIS ACT ?
FOI is used by members of the public,
commercial entities and to a great effect by
journalists.
Expenses; Salaries; Investigative journalism
Transparency in government
Definition of “RECORD”
“includes any memorandum, book, plan, map,
drawing, diagram, pictorial or graphic work or
other document, any photograph, film or
recording (whether of sound or imagines or
both) any form in which data (within the meaning
of the Data Protection Act 1988) are held, any
other form (including machine readable form) or
thing in which information is held or stored
manually, mechanically or electronically and
anything that is part or a copy in any form of any
of the foregoing or is a combination of two or
more of the foregoing.”
EXEMPTIONS
AND EXCLUSIONS
• Part III of the Act Sections 19 – 32
• cabinet discussions; defence information; state
bargaining position; contempt of court or breach of
privilege; commercial interests of 3rd parties; confidential
information
• Section 46 of the Act e.g records held by court; records re
the president; private records of TDs/Senators; records
already publicly available
• Administrative reasons - volume
THE PROCEDURE:
INITIAL REQUEST
• The Request for Access;
• Head of Agency Request under FOI;
• Identify the records;
• Fee (€15.00);
THE PROCEDURE:
INITIAL REQUEST
• Response / receipt within 10 days;
• Details of rights;
• Deal with – 20 days.
THE PROCEDURE:
INITIAL REQUEST
Decision to Grant Request:
• Within 20 Days
• Details of decision;
• Identify the decision maker;
• List the records covered by the request;
• Indicate the manner in which records are to be
provided;
• Costs of same.
THE PROCEDURE:
INITIAL REQUEST
Decision to Refuse Request
• Within 20 Days
• Details of decision;
• Identify the decision maker;
• Reasons for decision;
• Section(s) of the Act relied on;
• Internal review procedure detail
THE PROCEDURE:
INTERNAL REVIEW
• Higher authority within the agency
• €75
• Time limits for appeal
• Decision within15 days of submission
THE PROCEDURE:
INTERNAL REVIEW
Decision to Grant
• Within 15 Days of submission
• Details of decision;
• Identify the decision maker;
• List the records covered by the request;
• Indicate the manner in which records are to be provided;
• Costs of same.
• Procedure in letter
• Appeal to Office of the Information Commissioner
THE PROCEDURE:
INTERNAL REVIEW
Decision to Refuse
• Within 15 Days of submission
• Details of decision;
• Identify the decision maker;
• Appeal Procedure in letter;
• Costs of same;
• Appeal to Office of the Information
Commissioner
OFFICE OF THE INFORMATION
COMMISSIONER
Functions
• Appeals
• Advice to Government re Freedom of Information
• Review of operation
• Written decisions – on website
THE PROCEDURE:
APPEAL TO INFORMATION
COMMISSIONER
•
•
•
•
•
€150.00;
Appeal by letter – set out detail;
Copies of all exchanges with state agency;
3 months “in as far as practicable”
Appeal to High Court
OIC AND RELEASE OF INFORMATION RE
TENDERS
OIC decision 25th June 2001 – guidance
• Tenders confidential pending award
• Prices remain commercially sensitive and exempt
• After award, price, quality and quantity information from successful
tenderer may lose confidentiality
• Other confidential information remains so
• Unsuccessful tenderer information remains confidential
• Case by Case basis.
SUMMARY
Procurement law - general
• Above threshold access to information –
mandatory de-briefing – usually by letter
• Below threshold “constructive de-briefing”
encouraged – not mandatory
FREEDOM OF INFORMATION
•
•
•
•
•
•
•
•
Right of access
Records
Exclusions and exemptions set out in the Act
Third Party commercially sensitive
information
User friendly
Information on process available on line
Relatively low fees
Tight timelines for compliance
SUMMARY
State agencies recognise their serious obligations
under Freedom of Information and will usually make
provision in documents such as instructions to
Tenderers to enable them to comply with such
obligations.
If you want to take steps to protect your information –
ensure that in your submission, confidential
information is clearly marked. Your tender, once
submitted to a state agency, becomes a record for the
purposes of the FOI 1997.
SPECIFIC QUERY
Can details of pricing structures, product specification etc be protected
from third party access under FOI?
Yes if:
a) Record contains trade secrets
b) Record contains financial, commercial, scientific or technical or other information
i) disclosure of which – expected to result in material loss/gain to
person
to whom it relates
ii)could prejudice competitive decision making of that person
c) Disclosure could prejudice contractual negotiations for that person
If state agency wants to release can only do so if:
• Affected person consents
• Information publicly available
• Affected person advised when providing that information may be released under FOI
• State agency believes public interest better served – affected person must be
consulted – no agreement to release – OIC decides.