Decision has implications for government tenders
Although she did not order the release of all bid information submitted during a recent government loan financing proposal, Cayman’s information commissioner has set some key ground work in how open records requests for public bids will be handled in the future.
Commissioner Jennifer Dilbert said in a ruling her office released last week that tenders submitted for government projects will be subject to the country’s open records law to some degree, even if those bids are marked ‘confidential’ or have some secrecy clause written into them.
“I do not accept … confidentiality clauses constitute a contractual obligation on the part of government, or that they can override the application of primary legislation,” Mrs. Dilbert wrote. “A contractual obligation not to disclose certain information will not automatically render that information exempted under the Freedom of Information Law.”
This is not to say all bid documents would be automatically released when a request is made. That would have to be decided on a case-by-case basis, Mrs. Dilbert said.
“One or more exceptions or exemptions may apply to it and the public interest in withholding the record may be greater than the public interest in disclosure,” she said.
The information commissioner also noted that there was an obvious need to keep the bidding process secret while it is still ongoing. It is only after a bid process completes that an open records request would apply.
Cayman’s FOI Law, which took effect in January 2009, allows anyone to request public records from government entities. Those include bids submitted as part of public tendering processes for government projects where public money is spent. In the specific case before the information commissioner, an open records applicant asked for the names of all companies that submitted bids in the first round of tendering for financing of a US$185 million loan last year. The request also sought the date the bids were received, the bid offers and the final recommendations on the bids from the Central Tenders Committee.
After an elongated process, during which the Ministry of Finance released some of the bid documentation for the loan financing, the commissioner decided that the bids in this case did not have to be disclosed.
This was partly because the bidding process was stopped without identifying a successful bidder. The government actually went through two more tendering efforts before it finally chose a bank to finance the loan.
“If there is any question about the appropriateness of [the bidding] approach by government, it is not likely that disclosure of the responsive records will shed any light on this question,” Mrs. Dilbert said.
Mrs. Dilbert said there was “great interest” in how government handled the bid process for the US$185 million loan. However, she said the first tender – which is what the applicant asked for – was “quite marginal” to the overall issues of accountability and process.
No guidelines
One area of the Central Tenders Committee rules that Commissioner Dilbert found “unacceptable” was a statement that said the release of information to bidders and the general public was being reviewed as part of FOI implementation.
The CTC noted that, until such guidelines had been developed, all bid information – other than the successful bidder’s name and bid amount – would remain confidential.
Mrs. Dilbert noted these “guidelines” were published prior to January 2009, when the FOI Law came into effect; nearly three years ago.
“Whether intentional or not, government cannot expect to hide behind out-of-date guidelines … in order to avoid its legal obligations under the FOI Law,” she said.
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