Decision 089/2025: Tender documents

Authority: Angus Council
Case Ref: 202401112
 

Summary

The Applicant asked the Authority for all tender documents submitted by Urban Foresight for a contract for a Levelling-Up Project to develop Monikie and Crombie country parks.  The Authority withheld the information as it considered it to be commercially sensitive. The Commissioner investigated and found that the Authority had correctly withheld some information but wrongly withheld other information.  He required the Authority to disclose the wrongly withheld information.   

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 39(2) (Health, safety and the environment); 47(1) and (2) (Application for decision by Commissioner).

The Environmental Information (Scotland) Regulations 2004 (the EIRs) regulations 2(1) (definition of “the Act”, “the applicant” and “the Commissioner”; paragraphs (a), (b), (c) and (e) of definition of “environmental information”) (Interpretation); 5(1) (Duty to make environmental information available on request); 10 (1), (2) and (5)(e) (Exceptions from duty to make environmental information available); 17(1), (2)(a), (b) and (f) (Enforcement and appeal provisions).

Background

1. On 29 November 2023, the Applicant made a request for information to the Authority.  He asked for all tender documents submitted by Urban Foresight (UF) for the contract[1] for the Angus Levelling-Up Project to develop Monikie and Crombie country parks.
2. The Authority responded on 17 January 2024.  It withheld the information requested under the exemption in section 33(1)(b) of FOISA, on the basis that the tender documents contained information subject to commercial confidentiality, disclosure of which could cause substantial prejudice to UF.
3. On 21 January 2024, the Applicant wrote to the Authority requesting a review of its decision. He stated that he was dissatisfied with the decision because: 

• he considered the justification used by the Authority was weak, given that the invitation to tender documentation advised those submitting responses that any information provided would be subject to the Authority’s obligations under law, including FOISA 

• he did not believe the Authority had demonstrated that disclosure would cause substantial harm 

• the Authority had not adequately considered the public interest in disclosing the information. 

4. The Authority notified the Applicant of the outcome of its review on 1 February 2024, which fully upheld its original decision.  It also provided further arguments detailing its consideration of the public interest test.
5. On 11 February 2024, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  He stated that he was dissatisfied with the outcome of the Authority’s review because he disagreed with the exemption applied and, in any case, the public interest test favoured disclosure
6. On 21 June 2024, the Commissioner issued Decision 139/2024[2], where he found that the requested information was environmental information and that the Authority should have considered the request under the EIRs.  He required the Authority to provide a response to the Applicant’s requirement for review in terms of regulation 16 of the EIRs.
7. On 12 August 2024, the Authority provided the Applicant with a revised review response.  It responded in terms of the EIRs and withheld the information requested under the exception in regulation 10(5)(e).
8. On 19 August 2024, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  By virtue of regulation 17 of the EIRs, Part 4 of FOISA applies to the enforcement of the EIRs as it applies to the enforcement of FOISA, subject to specified modifications.  The Applicant stated that he was dissatisfied with the outcome of the Authority’s revised review because he disagreed with the Authority’s application of the exception in regulation 10(5)(e) to withhold the information requested. 

Investigation

9. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
10. On 11 September 2024, the Authority was notified in writing that the Applicant had made a valid application.  The Authority had provided the withheld information previously in relation to Decision 139/2024, so the Commissioner did not request it again.
11. The case was subsequently allocated to an investigating officer.
12. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.  The Authority was invited to comment on this application and to answer specific questions, related to its application of the exception in regulation 10(5)(e) of the EIRs. 

Commissioner’s analysis and findings

13. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority. 

Application of the EIRs

14. In its revised review response, the Authority considered the Applicant’s request under the EIRs, having concluded that the information requested was environmental as defined in regulation 2(1) of the EIRs, and applied the exemption in section 39(2) of FOISA.  The Applicant has not disputed the Authority’s decision to handle the request under the EIRs.
15. Having considered the terms of the request and the information identified by the Authority as falling within those terms, the Commissioner accepts that any recorded information falling within the scope of the request would be environmental information as defined in regulation 2(1) of the EIRs.
16. The Commissioner will therefore consider the request in what follows solely in terms of the EIRs.

Regulation 5(1) of the EIRs – Duty to make environmental information available 

17. Regulation 5(1) of the EIRs requires a Scottish public authority which holds environmental information to make it available when requested to do so by any applicant. This obligation relates to information that is held by the authority when it receives a request.
18. On receipt of a request for environmental information, therefore, the authority must ascertain what information it holds falling within the scope of the request.  Having done so, regulation 5(1) requires the authority to provide that information to the requester, unless a qualification in regulations 6 to 12 applies (regulation 5(2)(b)).
19. Under the EIRs, a public authority may refuse to make environmental information available if one or more of the exceptions in regulation 10 applies, but only if (in all the circumstances) the public interest in maintaining the exception or exceptions outweighs the public interest in making the information available.

Regulation 10(5)(e) of the EIRs – confidentiality of commercial or industrial information

20. Regulation 10(5)(e) provides that a Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially the confidentiality of commercial or industrial information where such confidentiality is provided for by law to protect a legitimate economic interest.
21. As with all exceptions under regulation 10, a Scottish public authority applying this exception must interpret it in a restrictive way and apply a presumption in favour of disclosure (regulation 10(2)).  Even where the exception applies, the information must be disclosed unless, in all the circumstances, the public interest in making the information available is outweighed by that in maintaining the exception (regulation 10(1)(b)).
22. The Aarhus Convention: an Implementation Guide[3], which offers guidance on the interpretation of convention from which the EIRs are derived, notes (at page 88) that the first test for considering this exception is whether national law protects the confidentiality of the withheld information.  The law must explicitly protect that type of information as commercial or industrial secrets.  Secondly, the confidentiality must protect a “legitimate economic interest”.
23. Having taken this guidance into consideration, the Commissioner’s view is that, before regulation 10(5)(e) of the EIRs can be engaged, authorities must consider the following matters: 

    1. Is the information commercial or industrial in nature? 

    2. Does a legally binding duty of confidence exist in relation to the information? 

    3. Is the information publicly available? 

    4. Would disclosure of the information cause, or be likely to cause, substantial harm to a legitimate economic interest?

Submissions from the Applicant on regulation 10(5)(e)

24. The Applicant did not consider that the Authority had provided “solid evidence that there would be a significant probability that substantial prejudice would occur” if the tender documents were disclosed, or that any prejudice would be “real, actual and cause significant harm”.  He also submitted that the Authority had not identified any legitimate economic interests and had not, therefore, shown that there could be substantial harm to such interests.
25. The Applicant also considered that the Authority had not shown any legally-binding duty of confidence in relation to the information requested.  He noted that the exception in regulation 10(5)(e) of the EIRs protects the confidentiality of commercial or industrial information only where such confidentiality is provided for by law to protect a legitimate economic interest.
26. The Applicant noted that the Authority’s Invitation to Tender documentation informed bidders that any information provided in the response submitted would be subject to the Authority’s obligations under law (including FOI law) and stated that it would disclose information where it was of the view that there was a legal duty to do so.
27. The Applicant therefore contended that any successful bidder would have been aware of the possibility of disclosure of information contained within their bid.  He considered the onus was on the bidder when submitting their bid to indicate any information they considered to be commercially sensitive information, for what reason and for what period of time.  He considered that it would be very unlikely that all the tender documents’ contents could be considered to be a legitimate economic interest.
28. The Applicant noted that the Authority suggested that disclosure could result in organisations being discouraged from dealing with the public sector due to commercial risk and that organisations would withhold information in future bids.  On the contrary, he submitted that bidders were already informed in advance about potential FOI disclosure and that this was simply another aspect of doing business with the public sector.  He considered disclosure would improve competition by giving all bidders a better understanding of the Authority’s bidding requirements.  Therefore, disclosure of successful bids would increase fairness in the bidding process for all bidders.
29. The Applicant referred to regulation 10(5)(e) of the EIRs, which states that “the protection of information under this exception should be limited to the minimum time necessary to safeguard the commercial or industrial interest in question”.  In addition, he noted that guidance such as that presented in the “Scottish Public Sector Procurement & Freedom of Information Guidance” indicated that tender documents should only be protected from disclosure up to when the contract is signed.
30. In this case, the contract was awarded on 21 July 2023 and was paused in November 2023 when it became clear that Levelling-Up funding would not be available. The Applicant noted that the contract in question was a “one-off” as it seemed very unlikely that there would be a future Levelling-Up fund available with the same objectives and qualifying criteria.   It would also seem “wasteful” of public funds and therefore unlikely for the Authority to carry out exactly the same exercise again with a similar contract.
31. The Applicant also referred to the Scottish Procurement Policy Handbook[4] (SPPH), which he considered supported his view that the information requested should have been disclosed to him.  He noted that the Authority had argued that this guidance was not applicable to contracts under £50,000 in value.  He submitted that there was no such threshold expressed within the SPPH.
32. In summary, the Applicant could see no justification for withholding the tender documents under the exception in regulation 10(5)(e) of the EIRs.

Submissions from the Authority on regulation 10(5)(e)

33. By way of background, the Authority explained that the subject of the procurement was to appoint a consultant to support its application via stage 3 of the Levelling-Up fund.  It was envisioned this would be in October 2023.   However, stage 3 was not reopened to new applications so there was no end product resulting from the procurement.  As a result, the engagement of the appointed consultant was curtailed and the staged payments closed off.  The full value of the contact, as per the public award, was not paid.  The Authority confirmed that the project had ceased prior to the date of the information request.
34. The Authority explained that UF’s tender submission contained information of a sensitive and commercial nature.  It identified specific examples of such information, including UF’s methodology, approach to projects and vision.  It argued that the information requested, including how it presented within the submission, was “unique” to UF and would be of value to their competitors – who could essentially replicate UF’s style in future submissions, which would cause substantial prejudice to UF.
35. The Authority was asked why it was necessary to withhold all the information in the four documents provided to him.  It submitted that so much of the content of these documents was commercially sensitive that redacted versions would only provide information already in the public domain and already provided to the Applicant.
36. In relation to the SPPH, the Authority acknowledged that the principles of the SPPH apply to all procurement.  However, it submitted that the SPPH itself does not represent legal advice – it provides guidance for public bodies to address within their own governance arrangements and exists within the legislative framework comprising the Public Contracts (Scotland) Regulations 2015 (as well as other pieces of legislation).
37. As the procurement in this case was less than £50k in aggregate value, the Authority submitted that the procurement route undertaken was beyond that necessary under procurement law.  It explained that the legislative framework within which the SPPH operates has set the threshold for regulated procurement at £50k and above – it is at this point where a competitive tender is to be undertaken.  However, following best practice, the Authority decided that a competitive tender would be suitable for the procurement in this case – despite it falling below this set threshold.
38. The Authority noted that freedom of information conditions had been included within the original procurement documents.  However, it confirmed that it reserved the right to ultimately determine whether information would require to be released in accordance with the provisions of FOI law and that it would disclose information where it viewed there was a legal duty to do so.
39. During the investigation of Decision 139/2024, the Authority consulted UF regarding disclosure of the information requested.  UF submitted that, in general, tenders could be argued to be sensitive in their entirety as they worked in a competitive marketplace and publication of full tender documents would disclose details about their team, approach, track-record, costing and working practices.  However, UF identified that there was a “spectrum” of information within the tender submissions, and it identified areas of particular sensitivity within the withheld information.
40. However, the Authority withheld the information requested in its entirety under the exception in regulation 10(5)(e) of the EIRs.

The Commissioner’s view about regulation 10(5)(e)

41. In the following, the Commissioner will consider if the Authority was justified in withholding information under regulation 10(5)(e) of the EIRs.  
42. As stated in many previous decisions, the disclosure or withholding of information in one case should not be taken to mean that information in a similar case would necessarily require to be disclosed or withheld.  As the Commissioner has made clear in many other decision notices, each case must be considered separately and on a case-by-case basis.

Is the information publicly available?

43. The Commissioner has examined the withheld information and accepts that some of it was not in the public domain.
44. However, some of the information that was withheld was (at the time of the request) – and still is – in the public domain.  As rehearsed earlier, the Authority stated in its submissions that disclosure of redacted versions of the withheld information would just provide information already in the public domain.  The exception cannot apply to information in the public domain.

Is the information commercial or industrial in nature?

45. The withheld information was created in the context of a tender submission for a contract for a Levelling Up Project to develop Monikie and Crombie country parks.
46. The Commissioner is therefore satisfied that some of the withheld information is commercial in nature for the purposes of regulation 10(5)(e) of the EIRs.
47. However, it is difficult to accept that all of the information withheld is commercial or industrial in nature.  Some of the information that was withheld cannot be regarded, on an objective reading, as being information of commercial or industrial nature in the sense intended by the exception in the EIRs.  Although the information may occur within a context accepted by the Commissioner (above) as commercial, there are instances where the actual information does not have that nature.

Does a legally binding duty of confidence exist in relation to the information?

48. In terms of regulation 10(5)(e) of the EIRs, confidentiality “provided by law” will include confidentiality imposed on any person under the common law of confidence, under a contractual obligation, or by statute.
49. The Commissioner does not accept that custom and practice, in itself, means that all information identified should be, or will be, automatically considered confidential.  To accept such a proposition would essentially give public authorities the ability to withhold such information under the EIRs, regardless of whether the information in question is confidential. The Commissioner is required to focus on the nature of any withheld information to determine whether a duty of confidence should stand.
50. The Commissioner accepts, in the circumstances, that some of the withheld information (e.g. relating to staff members, the approach proposed, costing and working practices) was subject to an obligation of confidence.
51. As the Commissioner noted above, the Authority has accepted that other information that is being withheld is either in the public domain or has previously been provided to the Applicant.  Given this, it is difficult to accept that there was an obligation to keep this information confidential.

Would disclosure of the information cause, or be likely to cause substantial harm to a legitimate economic interest?

52. The term “legitimate economic interest” is not defined in the EIRs.  In the Commissioner’s view, the interest in question should be financial, commercial or otherwise “economic” in nature.  The prejudice to that interest must be substantial; in other words, it must be of real and demonstrable significance.
53. The Commissioner accepts that disclosure some of the withheld information in this case would be likely to prejudice the legitimate economic interests of UF.  He has reached this conclusion having carefully considered the withheld information, submissions from both parties, comments from UF on areas of particular sensitivity within the withheld information and information publicly available on UF’s website[5].
54. The Commissioner is satisfied, therefore, that the Authority was entitled to apply the exception in regulation 10(5)(e) of the EIRs to some of the information falling within the scope of the request.  He accepts that disclosure of this information would allow a competing company to gain significant insight into UF’s pricing, approach to projects (including the allocation of staff resource) and vision.
55. In relation to other information (some of which is already in the public domain) that has been withheld, the Commissioner is not satisfied that the Authority has demonstrated disclosure of that information would cause, or be likely to cause, the substantial harm necessary for this exception to be engaged.  Just because information relates to a commercial enterprise does not in itself mean that its disclosure will cause harm.  While the Commissioner accepts that, notwithstanding the content, the style and presentation of UF’s tender submission may be unique to UF, he notes that UF has published several reports on its website with similar style and presentation.
56. Consequently, in relation to some of the withheld information, the Commissioner cannot accept that the Authority can justify the application of regulation 10(5)(e) of the EIRs.
57. Therefore, the Commissioner must find that, by wrongly withholding some information under regulation 10(5)(e), the Authority failed to comply with regulation 5(1) of the EIRs.  He requires the Authority to disclose this information to the Applicant.  He will provide a marked-up copy of the withheld information to the Authority, indicating what information should be disclosed.

The public interest test – regulation 10(5)(e)

58. Having accepted that the exception in regulation 10(5)(e) applies to some of the information, the Commissioner is required to consider the public interest test in regulation 10(1)(b) of the EIRs.  This states that a Scottish public authority may only withhold information to which an exception applies where, in all the circumstances, the public interest in making the information available is outweighed by the public interest in maintaining the exception.

The Applicant's submissions about the public interest

59. The Applicant explained that, although the actual Levelling-Up funding did not materialise, the tender documents submitted by UF and their subsequent work were still relevant to the public interest as the proposals could be used if funding became available from another source in the future.
60. The Applicant stated that Monikie and Crombie Parks are public parks that contribute to the quality of life, health and wellbeing of residents of Angus and beyond, through their natural environment, tranquillity and wildlife.  He noted that a limited online survey by the Authority in October 2023 received over 1,700 responses and the development of the parks had been subject to a number of newspaper articles and debate on forums and social media.  He also noted that the Authority’s own figures indicated that the country parks are visited by around 300,000 people each year.
61. The Applicant submitted that development of the parks could therefore significantly impact the lifestyles of a large number of the public that visit the parks, by radically impacting the character and facilities of the parks.  He also argued that the parks could potentially be “lost” to the public if development targeted traveling tourists rather than local residents (e.g. through gated entry fees).
62. The Applicant considered that disclosure of the information requested was therefore in the public interest, so that the public could review the bid and determine any impact to the general public.  It would also promote openness and public debate of the park’s development.
63. The Applicant noted that the parks contain fragile habitats and are home to a number of animal species, including legally protected species that could be harmed if not given adequate consideration.  The parks also contain a wide variety of plants and flowers that support many invertebrates.
64. The Applicant considered disclosure of the information requested would show what consideration was given in the bid to the biodiversity, wildlife and natural environment of the parks.  It would also help the early identification of impacts of any development on the biodiversity of the parks.  He submitted that this was very important given, that it is widely acknowledged, including by the Authority, that the UK is currently in a nature and climate crisis.
65. The Applicant also submitted that disclosure would allow scrutiny of the expenditure of public funds, giving the public opportunity to determine if it obtained value for money with the contract awarded.  It would show that the contract was awarded competently and with integrity, which would promote public confidence in the bidding process.
66. The Applicant noted that bidders were notified in the Invitation to Tender documentation about potential FOI disclosure.  He submitted that disclosure of successful bids would aid openness and transparency and would also improve competition, by giving all bidders a better understanding of the Authority’s bidding requirements.  Disclosure would therefore increase fairness in the bidding process, by creating a “level playing field” for all bidders.
67. The Applicant considered that the public, including any unsuccessful bidders, should be allowed to assess that the successful bid was competent and that the consultants were knowledgeable and capable, in order to maintain public confidence in the Authority’s handling of the contract.

The Authority’s submissions about the public interest

68. The Authority recognised the strong public interest in ensuring that procurement processes are conducted fairly, and that public money is spent appropriately.  It also recognised the general public interest in transparency and scrutinising the actions of public authorities..
69. In addition, the Authority considered there to be a strong public interest in the total sums of public money spent on specific contracts being made available to achieve “Best Value”.  However, it noted that this information is made publicly available when Contract Award Notices are published.
70. The Authority did not consider that providing full details of tenders submitted was in the public interest.  It submitted that this would make future tenders less competitive as details of recent submissions would become public information.  It argued this would discourage companies from seeking to do business with the Authority for fear of information being disclosed, leading to reductions in service and increased prices if fewer companies were competing for business.
71. The Authority noted that information pertaining to the financial aspect of the successful tender was already in the public domain.  The only remaining element was the subjectively assessed qualitative part of the tender submission.  It argued that it the disclosure of this information would not be in the public interest.
72. The Authority reiterated that the underlying project for which the appointment was made was no longer proceeding and was known by all relevant parties not to be proceeding, well before the Applicant submitted his request for information.  It argued that the fact the project was not proceeding diminished the public interest in disclosure of the tender submission, commercially sensitive as it was.
73. The Authority concluded, on balance, that the public interest in maintaining the exception in regulation 10(5)(e) of the EIRs outweighed the public interest in disclosure of the information requested.

The Commissioner's view on the public interest 

74. The Commissioner has carefully considered the submissions made by both parties on the public interest test, together with the information to which he accepts the exception in regulation 10(5)(e) of the EIRs applies.
75. The Commissioner acknowledges the general public interest in transparency and accountability, particularly in relation to the expenditure of public funds.  He also recognises the specific public interest in understanding the full detail of a tender submission which would have, had it proceeded, potentially significantly impacted the environment (as set out by the Applicant in his submissions).
76. The Commissioner has already concluded that disclosure of this information would be likely to cause substantial prejudice to a legitimate economic interest.  Such harm would be contrary to the public interest.
77. In the Commissioner’s view, it is in the public interest for organisations operating in a commercial environment to be able to trade fairly and provide a viable service in a competitive market.  He considers it is in the public interest that UF are not disadvantaged as a result of having entered into contractual arrangements (for a project that never transpired) with the Authority, with a consequential adverse impact on their ability to participate effectively in future competitive exercises.
78. The Commissioner also accepts that, to some extent, organisations might be discouraged from seeking to do business with the Authority for fear of commercially sensitive information being disclosed to the world-at-large (which is the effect of disclosure under FOI law).  This would not be in the public interest.
79. The Commissioner finds this to be a case where the public interest is finely balanced.
80. However, having carefully considered the public interest arguments put forward by both parties, and given that the project in question is no longer proceeding, the Commissioner has concluded that the public interest making the information available is outweighed by the public interest in maintaining the exception in regulation 10(5)(e) of the EIRs.  He is, therefore, satisfied that the Authority was entitled to withhold the remaining information under regulation 10(5)(e).

Conclusions

81. The information which is not covered by the exception in regulation 10(5)(e) of the EIRs should have been disclosed by the Authority at review (at the latest).  By failing to disclose this information, the Authority failed to comply with regulation 5(1) in this regard.  The Commissioner will provide the Authority with a marked-up copy of the information to be disclosed.

Decision 

The Commissioner finds that the Authority partially complied with the Environmental Information (Scotland) Regulations 2004 (the EIRs) in responding to the information request made by the Applicant.

The Commissioner finds that the Authority was entitled to withhold some information under regulation 10(5)(e) of the EIRs.

However, the Commissioner also finds that the Authority failed to comply with regulation 5(1) of the EIRs when it wrongly withheld information under regulation 10(5)(e).  

The Commissioner therefore requires the Authority to provide the Applicant with the information that was wrongly withheld, by 31 May 2025.   He will provide a marked-up copy of the withheld information to the Authority indicating what information should be disclosed.

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only.  Any such appeal must be made within 42 days after the date of intimation of this decision.

Enforcement 

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply.  The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

Euan McCulloch 

Head of Enforcement 

16 April 2025