Out-Law News | 24 Sep 2010 | 9:00 am | 3 min. read
The First Tier Tribunal has said that most of the withheld material in a contract between the Department of Work and Pensions (DWP) and Atos Origin for the provision of the Government Gateway service should be made public. The financial model used by Atos in the contract and the exact location of its data centre can be kept secret, it said.
Peter Collingbourne made a request for details of the contract in December 2007, and some of the requested details were released. Other parts were refused, though, when the DWP argued that it did not have to release the details because doing so would damage its and Atos's commercial interests.
Section 43 of the Freedom of Information (FOI) Act allows organisations to refuse to release material if it is a trade secret of would damage anybody's commercial interests, and if the public interest would be better served by continuing confidentiality rather than publication.
The Information Commissioner backed Collingbourne's request and ordered the DWP to release the contract details, but the DWP appealed to the Tribunal.
Atos was the only bidder for the £47 million Gateway contract after other interested companies pulled out. The contract was for a large IT system to handle information requests and transactions between Government departments and the public.
DWP told the Tribunal that the public interest was served by keeping details secret because publication of the details would erode its ability to obtain value for money in future contracts, and could discourage companies from bidding for Government work.
The information requested included details of caps on liability contained in the contract as well as details of the 'benchmarking' models used to demonstrate that Atos was charging DWP on a similar basis to other customers.
"The DWP does not want to disclose the [liability] caps because ... it would affect the actual amounts of liability cap that could be achieved for future procurements of shared services and would deter small and medium sized enterprises from bidding for public sector contracts," said the Tribunal ruling. "The reduction in the number of bidders would negatively impact on the commercial interests of the DWP."
The Tribunal ruled that section 43 of the FOI Act did apply to all the information requested.
"We find in relation to all the disputed information, except the Financial Model, that there 'would be likely to be prejudice' to the commercial interests of the DWP. We find that there is a causal relationship between the disputed information and future government procuring of IT services and that there is a real risk to the competitive environment particularly in relation to the future of the Gateway," said the ruling.
"However we do not go as far as the DWP to find that it 'would prejudice' their commercial interests as no evidence was provided to show that it was more probable than not and the only evidence was the conjecture of [DWP's lawyer], however genuinely held," it said.
The Tribunal found that Atos's financial model was a trade secret, and therefore deserving of more protection than the other data.
" Where the Tribunal has found that the information is a trade secret there is a strong public interest in protecting such a secret because of the investment likely to be involved and that the disclosure of such a secret could undermine the owner’s business and give competitors a commercial advantage," it said.
The Tribunal said that the financial model did not have to be made public. "We find that it would not be in the public interest that suppliers would in any way be reluctant to provide financial models in large IT outsourcing contracts," said the ruling. "There is strong public interest in knowing that a financial model exists so that the public authority can scrutinise the financials in an outsourcing contract and that there is transparency for example in the pricing of modifications to the contract under the change control process. In our view this factor does not require the disclosure of the model itself only the knowledge that it is part of the contract."
DWP had asked for the location of the data centre in which the system's information is stored to be kept secret as a security measure. Because it had agreed to identify the country it was in so that the public could be sure that it was protected by adequate data protection laws, the Tribunal allowed its exact location to remain a secret.
In relation to the liability caps, benchmarking and other details of the contract, the Tribunal said that the public interest was weighted in favour of disclosure.
"The public interest in knowing that there are adequate service levels and performance measures etc would seem to be a much weightier factor when considering the importance of the Gateway to citizens and organisations who use the public services which it hosts," it said. "Also because the original contract failed, there is a strong public interest in knowing of any increased costs of the 2006 Contract which can be found in the change control notices."
"We also find there is a strong public interest in being open about the Benchmarking Model. It is important for the public to know that there is a means by which the DWP will not be paying higher prices for services than Atos’ other customers," said the ruling.
"We therefore find that the public interest in maintaining the exemption does not outweigh the public interest in disclosure," it said.