FOI-6-22 

Date: 12 January 2022 

Summary: Purchase, Maintenance and Support of Network Equipment 

Request:   

I would be most grateful if you would provide me, under the Freedom of Information Act, details in respect to the contract below.  

19-16 Purchase, Maintenance and Support of Network Equipment:  

https://url6.mailanyone.net/v1/?m=1n7c0L-00083Q-4p&i=57e1b682&c=12V8mxXvXT9-ksu8VmQR3q5N4NCX-RJQnpoyHSE9tofmwzT5Xt3g8nhHeMyx7z8ZQPjBHqmD2z0tafh_omBjsxNZ0DmKWfzOE5YX9ZVkGPHl5fmXks6FNiRRFuMVr0R1aCFjlDAxHG8kS68aiCpPVoQpLUZl0F0IFvJNOhEOKDagM91ibdftMMRHg7OMLDdkbhJRdljyj4SFSiGxQ3ly_8PFoydqcvIRLxD-jbdmajMqBnl5g1WrxC36SzS6eMrX1nTMYNrbB-0j1XbwYQXgQqEnVEN_pExpna3WlK29v9ZPrOtvYcXDadSRIqBBCVVf   

The details we require are: 

• What are the contractual performance KPI's for this contract? 
• Suppliers who applied for inclusion on each framework/contract and were successful & not successful at the PQQ & ITT stages • Actual spend on this contract/framework (and any sub lots), from the start of the contract to the current date • Start date & duration of framework/contract? 
• Could you please provide a copy of the service/product specification given to all bidders for when this contract was last advertised? 
• Is there an extension clause in the framework(s)/contract(s) and, if so, the duration of the extension? 
• Has a decision been made yet on whether the framework(s)/contract(s) are being either extended or renewed? 
• Who is the senior officer (outside of procurement) responsible for this contract? 

Response:  

In accordance with Section 1(1)(a) of the FOIA, I can confirm that the University does not hold the requested information in part as some of the information pertaining to the scope of your request is held by a third party.   

I have decided to withhold the requested information, pertaining to the scope of the request, in part, in accordance with Section 21 and Section 43 of the FOIA.  

Section 17 of the FOIA provides that:  

  17. Refusal of Request  

17. —(1) A public authority which, in relation to any request for information, is to any extent relying on a claim that any provision of Part II relating to the duty to confirm or deny is relevant to the request or on a claim that information is exempt information must, within the time for complying with section 1(1), give the applicant a notice which— 

1. states that fact,  
2. specifies the exemption in question, and  
3. states (if that would not otherwise be apparent) why the exemption applies.  

Section 21  

Section 21 of the FOI Act provides that:   

21. Information accessible to applicant by other means  

21. (1) Information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information.  

(2). For the purposes of subsection (1)-   

(a) Information may be reasonably accessible to the applicant even though it is accessible only on payment; and   

(b) Information is to be taken to be reasonably accessible to the applicant if it is information which the public authority or any other person is obliged by or under any enactment to communicate (otherwise than by making the information available for inspection) to members of the public on request, whether free of charge or on payment.   

The FOIA gives rights of public access to information held by public authorities. The purpose of Section 21 of the FOIA is to ensure that there is no right of access to information via the FOIA/FOI process, if it already available to the applicant via another route.   

This exemption applies if the requested information is already accessible to you as the Applicant. This exemption is applied where it is either known that you already hold the information, or it is available to you with the information already being in the public domain.   

When the University is applying this exemption, it has a duty to confirm or deny whether it holds the information and where possible inform you of how you can access the information.   

Given that the information is available in the public domain, it is entirely reasonable and appropriate to withhold disclosure of the requested information pertaining to question 4 in accordance with Section 21 of the FOIA. The requested information can be found at the website referenced in the original scope of your request, https://url6.mailanyone.net/v1/?m=1n7c0L-00083Q-4p&i=57e1b682&c=12V8mxXvXT9-ksu8VmQR3q5N4NCX-RJQnpoyHSE9tofmwzT5Xt3g8nhHeMyx7z8ZQPjBHqmD2z0tafh_omBjsxNZ0DmKWfzOE5YX9ZVkGPHl5fmXks6FNiRRFuMVr0R1aCFjlDAxHG8kS68aiCpPVoQpLUZl0F0IFvJNOhEOKDagM91ibdftMMRHg7OMLDdkbhJRdljyj4SFSiGxQ3ly_8PFoydqcvIRLxD-jbdmajMqBnl5g1WrxC36SzS6eMrX1nTMYNrbB-0j1XbwYQXgQqEnVEN_pExpna3WlK29v9ZPrOtvYcXDadSRIqBBCVVf  

Information pertaining to questions 6, 7 and 8, regarding the contract extension and staff member in charge, can be found on the University of Wolverhampton’s website, https://www.wlv.ac.uk/staff/services/procurement/contract-information/contracts-register/    

Section 43  

Section 43 of the FOIA provides that:   

 43. Commercial Interests  

43. (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)/   

(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice the interests mentioned in subsection (2).   

The FOI Act gives rights of public access to information held by public authorities. Section 43(1) of the FOIA provides an exemption for information which is a trade secret. Section 43(2) exempts information whose disclosure would, or would likely to, prejudice the commercial interests of any person/legal entity. This is often referred to as commercial sensitivity.  

A public authority may refuse to disclose information where such confirmation or denial of information would or would be likely to prejudice its commercial interests.   

The Section 43 exemptions are qualified exemptions, subject to the public interest test.   

Section 43(1) - Trade secrets  

The term “trade secret” is not defined in FOIA. The concept of a trade secret has developed through common law and has a fairly wide meaning. It is information which is not simply confidential but confers a competitive advantage to the owner and therefore requires more protection.   

A trade secret is information which has not been widely disseminated and is not generally known. It is information which a rival could not easily recreate or discover themselves. In this context, disclosure of the information should also be liable to cause real (or significant) harm to the owner or be advantageous to any rivals. It is information which therefore should be accorded a high level of secrecy.   

A trade secret can be thought of as the property of an organisation and clauses in employment contracts will often prevent an ex-employee from disclosing a trade secret.   

A trade secret may be a technical secret or a business secret.   

A technical secret might be:   

• an invention;   
• a manufacturing process;  

• engineering and design drawings; or   
• a craft/recipe (common in food, pharmaceutical and cosmetic industries);  

A business secret might be:   

• costs information, such as how much money an organisation spends, which is the case in this instance;  

• pricing information, such as how much a company plans to charge for a product it sells;  
• supplier lists and contact details; or   
• plans for the development of new products / the discontinuance of old products.  

The First-tier Tribunal discussed the definition of a trade secret in the case of the Department for Work and Pensions v IC EA/2010/0073, (20 September 2010). It quoted from previous court and Tribunal decisions which had reviewed the nature of a trade secret. The Tribunal therefore noted that a trade secret was information, which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret, which is applicable here, with the harm being caused to the University or its contractors. This assumed that the information was used in a trade or business and that the owner had either limited the dissemination of the information or at least not encouraged or permitted widespread publication. The Tribunal also noted that the concept of a ‘trade secret’ was one that related to a particular kind and quality of information.    

Section 43(2)- Prejudice to commercial interests  

In order for such information, that is likely to prejudice the commercial interests, the University must show that because the information is considered to be commercially sensitive, disclosure would be, or would be likely to be, prejudicial to the commercial interests of the University.  

In order to apply section 43(2), the public authority must satisfy itself that disclosure of the information would, or would be likely to, prejudice or harm the commercial interests of any person (this can include the public authority holding it). This is known as the prejudice test.   

The term “would…prejudice” means that prejudice is more probable than not to occur (ie a more than a 50% chance of the disclosure causing the prejudice, even though it is not absolutely certain that it would do so).   

“Would be likely to prejudice” is a lower threshold. This means that there must be more than a hypothetical or remote possibility of prejudice occurring. There must be a real and significant risk of prejudice, even though the probability of prejudice occurring is less than 50%.  

The University must decide the likelihood of prejudice arising on the facts of each case. Establishing the appropriate level of likelihood is important as it has an effect on the balance of the public interest test.  

A Commercial Interest   

This relates to the University’s ability to participate competitively in a commercial activity/environment.   

In the case of University of Central Lancashire (UCLAN) v IC and Professor Colquhoun EA/2009/0034, (8 December 2009), the Tribunal found that the selling of courses by UCLAN was a commercial activity which enabled it to remain solvent. The Tribunal considered that a body which depends on student fees to remain solvent has a commercial interest in maintaining the assets upon which the recruitment of students depends. These assets were the teaching materials UCLAN had produced for its degree courses. The Tribunal accepted that UCLAN was operating within a competitive environment where other institutions of higher education were also seeking to sell similar products (undergraduate degree courses) to potential students. The Tribunal therefore concluded that UCLAN’s interests in its teaching materials produced for its degree courses were commercial interests.  

Arguments in favour of disclosure   

It can be argued that in the interests of openness and transparency, which a public authority, like this University, should bear in mind the case for these principles when balancing any public interest argument.   

Also, the accountability for spending of public money, where the disclosure of commercial information can make a public authority (like this University) more accountable for how they spend their public money.   

Both of these arguments are outweighed by arguments in favour of maintaining the exemption under Section 43(2) of the FOI Act.  

Arguments in favour of maintaining the exemption   

There is a public interest in allowing a public authority (such as this University) to withhold information which if disclosed (as is the case here), would reduce its ability to negotiate or compete in a commercial environment.   

In the case of Willem Visser v Information Commissioner EA/2011/0188, (1 March 2012) the complainant requested a copy of the approved business plan of the London Borough of Southwark Council with a third-party company which delivered leisure services on its behalf. Part of the plan was withheld under section 43(2). The Commissioner's decision was that the Council was correct to apply section 43(2) and that the public interest supported maintaining the exemption in this instance. The Tribunal agreed. It found that even though the company in question was not-for-profit it operated in a competitive market. It noted that prejudicing the commercial interests of one player in the market would distort competition in that market, which in itself would not be in the public interest. As the Tribunal pointed out, in terms of the public interest test, there is therefore a public interest in protecting the commercial interests of individual companies and ensuring they are able to compete fairly: “If the commercial secrets of one of the players in the market were revealed then its competitive position would be eroded and the whole market would be less competitive with the result that the public benefit of having an efficient competitive market would be to some extent eroded”.  

The disclosure of information may cause unwarranted reputational damage to the University and/or another organisations whose information it holds, which may in turn damage its commercial interests through loss of trade if for example, disclosure will provide a detailed breakdown of spend on services, thus enabling competing companies to undercut our supplier. 

Information pertaining to question 1 is exempt under Section 43(1) and question 3 of the request is exempt under section 43(2) of the FOIA.  

 Information pertaining to questions 2 and 5 does not exist. This information is not held by the University but is held by JISC. We recommend redirecting your request here, https://www.jisc.ac.uk/frameworks