Request for information – FOI14507
Thank you for your email of 14 November 2014, requesting the following information from Ordnance Survey in accordance with the Freedom of Information Act 2000 (FOIA):
“Under Freedom of Information legislation we ask to see all the evidence of the objective project appraisal that you carried out before issuing this ITT, showing how your decision re IPR was arrived at using cost-benefit analysis and taking account of ensuring good value for the public sector as a whole”.
I confirm that Ordnance Survey does hold the requested information, however, we will not be releasing this information as we consider it to be exempt from disclosure under section 43(2) (commercial interests) and section 36(2) (b) and (c) (prejudice to the effective conduct of public affairs) of the FOIA. These are detailed below:
Section 43(2) of the FOIA
The Information Commissioner recognises that some public authorities are permitted to engage in commercial activities and that information held in relation to these will fall within the scope of Section 43(2).
We consider that the exemption under Section 43(2) applies because the market sector in which Ordnance Survey operates is highly competitive and the disclosure of this information undermines the organisation’s market position and would be detrimental to Ordnance Survey’s commercial interests given the competitive nature of the industry segment in which Ordnance Survey operates.
In addition, Ordnance Survey is subject to and has fully complied with its obligations as a contracting authority under the Public Contract Regulations 2006 (Regulations) in respect of the procurement process for external remote sensing services referred to in your request. We consider that the disclosure of the information requested would undermine and frustrate the procurement process.
Section 43(2) is a qualified exemption and we are required to consider the public interest. Ordnance Survey recognises the need for transparency, however, this has to be balanced against the public interest in allowing the organisation to protect its commercial information and not place itself at a disadvantage in the specialist market in which it operates.
Private sector bodies operating in the same market segment are not bound by the FOIA and are therefore not disadvantaged by the potential disclosure of similar commercial information.
Consequently, we are satisfied that there is greater public interest in withholding the information under this exemption to ensure the commercial interests of Ordnance Survey are not undermined and our government tasks can be fulfilled, therefore, we will not be releasing this information.
Sections 36(2) (b) and (c) of the FOIA
We additionally consider that the exemption under Sections 36(2) (b) and (c) apply. Despite the fact that Ordnance Survey is a non-ministerial government department, reporting to Parliament through ministers, it operates as a trading fund with delegated responsibility for financial and business planning.
This delegation includes the internal operation of our Board and related deliberations which are recorded in the information you have requested. The disclosure of such information would inhibit the future ability of individuals to express themselves openly or to explore options when providing advice or giving/exchanging views as part of the deliberation process.
The application of the exemption under Sections 36(2) (b) and (c) requires the consultation of a “qualified person”. Following consultation, it is the opinion of the qualified person that detailed public knowledge of the information requested:
Would or would be likely to, in the future, inhibit:
- the free and frank provision of advice
- the free and frank exchange of views for the purposes of deliberation;
- would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.
As section 36(2) is a qualified exemption, we are required to consider the public interest. Potential disclosure makes it less likely that individuals will be prepared to engage freely in discussions, thus hampering the ability of the organisation to reach collegiate decisions in the public interest. Without such discussions, the ability to deliver successful business outcomes would be undermined.
We are satisfied that there is public interest in favour of withholding the information and consequently, we will not be releasing this information.
Decision in respect of IPR
Under our duty to provide advice and assistance as stipulated in Section 16 of the FOIA, we can provide the following information which may assist you in this matter.
In our letter addressed to xxxxxx in May 2014, we confirmed the following:
“It remains our intention to procure our external remote sensing requirements through an open tender procedure as we believe this will continue to offer us greatest value for money in respect of our distinct requirements as the National Mapping Authority. Whilst we recognise that xxxxxx and xxxxxx have been awarded significant contracts by various parts of the public sector in both Scotland and England, we are also minded to observe that their procurement requirements remain different from Ordnance Survey and whilst there are overlaps we wish to maintain the security of service, necessarily bespoke requirements and control over our operations that only an independently procured service will enable us to do.
We are currently giving thought as to how we may choose to specify our current IDC contract requirements for external remote sensing services. We intend to publish these as an open competition tender later in 2014 and at that time we look forward to receiving a range of creative and commercially compelling responses from the market. We hope that xxxxxx and xxxxxx are able to provide such a tender response in due course.”
Our specification of requirements relating to IPR within the current procurement process for external remote sensing services referred to in your request includes the following considerations:
- Ordnance Survey requires wider and significantly different rights than those that are granted under licence pursuant to the contracts procured by xxxxxx and xxxxxx.
- Ordnance Survey requires the ability to use the deliverables on an unrestricted basis, free from third party rights, to cover both its core operations today and for future requirements.
- Ordnance Survey needs to ensure it is in a position to deliver changing Crown policy requirements, therefore there is a need to future-proof Ordnance Survey’s supply chain from a rights perspective. Procuring IPR ownership in deliverables achieves this, and achieves best value, in a way that licensing cannot.
Wherever possible, in accordance with the industry standard approach, Ordnance Survey aims to procure IPR ownership in all deliverables it procures, and this is particularly the case for bespoke deliverables such as these.
Your enquiry has been processed according to the Freedom of Information Act (FOIA) 2000. If you are unsatisfied with the response, you may request an internal review with Ordnance Survey’s FOI Internal Review Officer, by contacting them at the following address:
FOI Internal Review Officer
Customer Service Centre
Please include the reference number above. You may request an internal review where you believe Ordnance Survey has:
- Failed to respond to your request within the time limits (normally 20 working days)
- Failed to tell you whether or not we hold the information
- Failed to provide the information you have requested
- Failed to explain the reasons for refusing a request
- Failed to apply an exemption or exception correctly
The FOI Internal Review Officer will not have been involved in the original decision. They will conduct an independent internal review and will inform you of the outcome of the review normally within 20 working days, but exceptionally within 40 working days, in line with the Information Commissioner’s guidance.
The FOI Internal Review Officer will either: uphold the original decision, provide an additional explanation of the exemption/s applied or release further information, if it is considered appropriate to do so.
Appeal to Information Commissioner's Office (ICO)
If, following the outcome of the internal review you remain unsatisfied with our response, you may raise an appeal with the Information Commissioner’s Office at:
The Case Reception Unit
The Customer Service Team
The Information Commissioner’s Office
Telephone helpline: 0303 123 1113 or 01625 545745 for advice, Monday to Friday.