In Department for Works and Pensions v Information Commissioner, the first tier tribunal has ruled that the Department must disclose most of the contract, risk assessment and costs information associated with its agreement with Atos, the company which won the multi-million pound contract for the design, build and maintenance of the Government Gateway.. The Department for Works and Pensions, and the Cabinet Office before it, had claimed exemption from the Freedom of Information Act duties, based on s. 43 of the FOIA. The relevant provision was: (1)Information is exempt information if it constitutes a trade secret. (2)Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it) Although, even where s. 43(1) or (2) are shown to apply, there is a further need to balance the public interest for and against disclosure.
The case is partly worthy of note for the history, which shows a classic initial reluctance to disclose followed by a drip of information as the claims for exemption are accepted as being weak in respect of much of the information sought. However, the meat of the decision is in its treatment of what constitutes a trade secret and the tribunal’s use of the balancing test (having decided that the s. 43 exemption was applicable. The DWP appeal was successful to only a very limited extent but Atos’s Financial Model was protected from disclosure. The full judgment can be downloaded from the panel opposite. The words of Principal Judge John Angel on this topic may especially interest SCL members:
90 We have already found that this is a trade secret of Atos or alternately its disclosure would prejudice the company’s commercial interest for the reasons given above. We also note that the OGC FOI (Civil Procurement) Policy and Guidance version 2.0 (“OGC Guidelines”) recognises financial models and that up to the contract date its working assumption is that it should not be disclosed. It is not mentioned again in later stages of contract delivery but it seems to us that there is a strong public interest in such models being protected though the life of a contract particularly where the model continues to be used. The Financial Model in this case contains confidential information which if disclosed may very well reduce the competitiveness of Atos. Although Mr Dervin [of Atos] would not walk away from public procurement if the model was disclosed he was clearly very concerned if it was disclosed and indicated that Atos would be less inclined to offer such models as part of future contracts.
91 If this was the case then 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. 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 which has been subject to independent scrutiny and that the financials are at least transparent between the parties so that there is every possibility that the public authority can ensure that the public is receiving value for money.
92 Therefore we find that the public interest is satisfied by the disclosure already made as to the nature of the model and that the public interest in maintaining the exemption outweighs the public interest in disclosure.
