PLC Public Sector reports:
What may be the most litigated series of procurements ever, the Legal Services Commission’s (LSC) replacement of legal aid contracts, took a further blow this week with an adverse decision notice issued by the Information Commissioner. The Commissioner held that repeated requests for information from a tenderer for details of the LSC’s tender process for immigration services were not vexatious repeat requests under the Freedom of Information Act 2000 (FOIA) and that the LSC must respond to the request substantively.
As the worlds of transparency and public procurement increasingly blur, the decision notice makes it clear that repeated requests relating to one procurement process will not easily be avoided.
The applicant, an employee of a tenderer involved in the LSC’s tender for immigration services, requested:
“full details of all the instances where the LSC changed the answer given by an applicant in any part of the Immigration Tender with or without the knowledge of the applicant. That is with or without the express or implied approval of the applicant.”
The LSC refused on the basis that the applicant had “repeatedly asked for similar, if not identical, information in previous requests”, and therefore the exemption relating to repeat requests in section 14(2) of FOIA applied.
Following a complaint, the Commissioner investigated and it became clear that the previous similar requests (there had been seven in all) to which the LSC referred related to “clarifications” sought by the LSC from bidders and not, as in this request, details of changes actually made to tenders. The Commissioner’s guidance on vexatious or repeated requests makes it clear that a public authority should not refuse a request simply because it relates to the same subject or theme as a previous request, unless it would have to give the same information in response. In this instance, the Commissioner felt that while relating to similar issues, the request differed from the requests previously submitted and would lead to different information being disclosed. As a result, the provisions of section 14(2) could not apply and the LSC must either provide the information or identify another exemption which meant it was not required to do so.
The effect of this decision notice will be that tender processes will generally be “fair game” under FOIA until all information relating to them has either been disclosed or identified as exempt, pointing to a long list of requests all relating to the same procurement process will not alone mean that a request can be refused under section 14(2). In light of the government’s increased transparency requirements and the restrictions on the usefulness of information gained using FOIA that exists due to the reasonably lengthy response period that can apply, a view could be taken that this is not a hugely significant issue. This may be true, but it does add yet another potential burden to the information and public procurement functions of already stretched public authorities. Further, with the ever expanding use of FOIA and increasing focus on procurement spend, this burden is only likely to become more onerous.
This opinion post previously referred to European Dynamics. We would like to make it clear that these references were not intended to imply that any legal proceedings have been brought improperly by European Dynamics and apologise if they have been construed in this manner. Details of all our full legal updates on the cases involving European Dynamics that we are aware of (both where European Dynamics has been successful and unsuccessful) continue to be available in our public procurement case law tracker.