Mr X and South Dublin County Council

• Judge: Senior Investigator
• Judgment Date: 31 March 2021
• Case Outcome: The Senior Investigator varied the Council's decision. He directed the release of that part of one of the records comprising the financial proposal submitted by the successful tenderer, subject to the redaction of certain third party personal information.
• Record Number: OIC-101639-C9N0M0
• Respondent: South Dublin County Council
• Court: Information Commission

Whether the Council was justified in refusing access, under section 36 of the FOI Act, to four records relating to a concession agreement to manage Grange Castle Golf Course

31 March 2021

Background

In 2013, the Council issued an invitation to tender for a service concession to manage, operate and maintain Grange Castle Golf Course (the Course). The concession was awarded to Synergy Golf Limited (Synergy Golf). In a request dated 12 October 2020, the applicant sought access to a range of information relating to the concession agreement.

In its decision dated 6 November 2020, the Council identified nine relevant records. It granted access to five records and refused access to records 2, 4, 6 and 7, under section 36(1) of the FOI Act on the ground that the records contain commercially sensitive information. The applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 18 December 2020, the applicant sought a review by this Office of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting the review, I have had regard to correspondence between the applicant and the Council as outlined above and to communications between this Office and both parties on the matter. In light of the nature and contents of the records at issue, this Office notified Synergy Golf of the review and invited it to make a submission on the matter. I have had regard to the submission it subsequently made. I have also had regard to the Public Procurement Guidelines for Goods and Services published by the Office of Government Procurement, and to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the Council was justified in refusing access to records 2, 4, 6 and 7 under section 36(1) of the FOI Act.

Analysis and Findings

The Records

Record 2 is an extract from Synergy Golf’s tender proposal, comprising its pricing strategy. Record 4 comprises copies of Synergy Golf’s Annual Financial Statements for the years 2014 to 2018 in respect of the Course. Record 6 is an extract from the various tender proposals, containing details of the annual fee each tenderer proposed to pay for operating the concession (the financial proposal). Record 7 is an extract from Synergy Golf’s tender proposal, containing details of the amount offered by Synergy Golf to purchase certain golf course machinery owned by the Council.

Council’s Submission

The Council said that record 2 discloses how Synergy Golf can generate additional monies from the concession during the lifetime of the agreement. It argued that this information is commercially sensitive and its release would expose trade secrets and undermine Synergy Golf’s current pricing strategy in the competitive market. It argued that the release of record 4 would very likely affect Synergy Golf’s commercial standing in the golf market and prejudice its competitive position. It argued that the release of the proposed annual concession fee (record 6) would expose trade secrets and undermine Synergy Golf’s ability to bid in future competitions/projects. Finally, The Council argued that record 7 discloses Synergy Golf’s financial standing and its ability to make competitive bids for specialised machinery required for the maintenance and upkeep of a golf course. It argued that the release of this information combined with the other financial information requested would likely result in material financial loss and prejudice the competitive position of Synergy Golf. In essence, the Council argued that subsections (a), (b) and (c) of section 36(1) apply to the various parts of the records at issue

Synergy Golf’s Submission

Synergy Golf said that the 2013 Concessionaire is currently nearing the end of its term and as such, it argued that the records sought are extremely commercially sensitive and of value to any competitor who may wish to tender and subsequently outbid Synergy Golf for future concession agreements.

Specifically, Synergy Golf said that the agreement of fees and pricing strategies (record 2) outline how it can generate additional revenue from the project. It said it does this by creating a bespoke package using a variety of sales and promotional techniques that have been developed over years of experience and a comprehensive understanding of the golf business. It argued that the details effectively amount to trade secrets and that exposing the information/trade secrets contained within the document to the general public and/or its competitors would reveal valuable Synergy Golf intellectual property in its bespoke sales and promotional techniques, and effectively expose its key competitive edge as an expert golf management company. It argued that the information in record 2 also constitutes information in relation to Synergy Golf's current pricing strategy and otherwise unavailable product information, containing detailed explanations as to how Synergy Golf proposed to meet the Council’s requirements.

In relation to record 4, Synergy Golf said that the annual statements reveal commercially sensitive performance data about the company and its direct relationship with the Council. It said the information is related purely to the financial business of Synergy Golf and the disclosure of the record would result in the operations of the private enterprise of Synergy Golf being opened to scrutiny. It further argued that exposing the information would provide a competitor with a commercially competitive advantage which would prejudice Synergy Golf’s competitive position, in respect of both the upcoming retendering of the concession, and in all future/current projects that Synergy Golf is involved in as it would expose a commercial agreement in a relatively small market.

Synergy Golf said that record 6 explicitly reveals the commercial agreement that exists between Synergy Golf and the Council. It said the bid is formulated as a result of years of experience and an expert knowledge of the golf business and that prior to submission, it is carefully and strategically analysed, risk assessed and subsequently offered. It argued that this effectively amounts to trade secrets and that exposing...