BIS Ref:11/0575 Your Ref: Paul Cotterill Email: **********************

21 September 2011 Dear Mr Cotterill INTERNAL REVIEW OF FREEDOM OF INFORMATION REQUEST 11/0575 I am writing in response to your email of 5 July requesting an internal review of the above case. I have now reviewed the information which was withheld by the Department in its response to your original request. I set out my decision below. Your original request was made on 24 May 2011 and asked for disclosure of, 1) Copies of all funding applications that were successful in attracting Regional Growth Funds, as announced on Tuesday 24th March 2011. 2) A copy of any assessment and scoring criteria used by the Regional Growth Fund panel used to decide which applications should be funded. 3) Any correspondence from BIS and the Western Morning News in relation to this organisation's application to the Regional Growth Fund. The Department responded to your request on 22 June 2011 (the Response). The Response explained that whilst we do hold information which falls within the scope of the request, the information requested in 1) and 2) was being withheld under section 43(2) and section 41(1) of the Freedom of Information (FoI) Act also under the terms of Environmental Information Regulation (EIRs). However, information requested in 3) above was released to you. I have conducted an internal review of the original response and in performing this review; I have re-considered whether withholding the information in accordance with the Environmental Information Regulations (EIRs) and to the extent the information is not environmental, the Freedom of Information Act (FoIA, was correct. As stated in the Guidance for applicants on our website, we have approached the 50 successful bidders to seek their consent on release of their bid information. Of these, only

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6 have consented. Copies of these 6 bids are being sent to you separately by post as they are too large to be sent by email. The personal information within these bids has been redacted under Sec 40(2) FoIA and some information within the application form has been redacted, under Sec 43(2) as the information is commercial in nature and release of which could prejudice the commercial interests of the bidder. The remaining bidders raised concern about the release of their information which are set out below, and based on this I have decided not to share their bid details. The release of information could be damaging to their business and cause the project to fail Sec43(2)FoIA and EIRs 12(5)(e) Bid contains information that is commercially sensitive, disclosure of which could prejudice their commercial interests Sec43(2) FoIA and EIRs 12(5)(e) Some of the information has not yet been internally announced and to release publicly now could be advantageous for competitors - Sec43(2) FoIA and EIRs 12(5)(e) Information has been provided in confidence and disclosure would constitute a breach of confidence Sec 41 Bids are undergoing due diligence and grant offer is not guaranteed until offer letter is received Sec43 Other than the 6 bids that we have decided to provide you, I have decided to uphold the original decision to withhold the information requested from disclosure, under Section 40, 41, 43 (2) of the FOI act and EIR 12 (5)(e), and therefore will not disclose this information. EIRs Environmental information is being considered within the exception under regulation 12(5) (e) where the disclosure of information is provided by law to protect a legitimate economic interest. In considering this, I have applied a presumption in favour of disclosure as required by regulation 12(5)(e) EIRs. Each of the bid documents, in its entirety, was supplied to the department in confidence. This information is subject to a duty of confidence and disclosure of the information would constitute an actionable breach of confidence. Further, the bidders have strongly asserted that the disclosure would harm their commercial interests. The information is highly commercial and sensitive and could be used by competitors. Publication of the bid may it hinders bidders chances of applying for other funding sources, or obtaining other contracts, particularly where the terms offered to BIS are more favourable. BIS has a wider interest in protecting the effectiveness of the bidding process and not undermining future bidding processes. The Regional Growth Fund (RGF) is a challenge fund where bids are in competition against each other. Decisions on RGF allocations are made by Ministers on the advice of an Independent Advisory Panel. Disclosure would

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alter the competitive nature of the bidding process, disrupt the decision-making and deter future bidders from entrusting us with sensitive commercial information. Whilst we acknowledge the importance of transparency and the need to account for public funds, there will be an opportunity to review successful bids as details of the project, grant offered and company name will be published on our website once bidders have completed their due diligence process and have been issued with Grant Offer Letters. It is at this point the public interest in disclosure/transparency of the allocation of public money will be met. We therefore consider that the public interest in protecting the effectiveness of the BIS bidding process and the commercial interests of the bidders outweighs the interests of disclosure. The information requested relates to bids that have been successful in the first round of bidding for the Regional Growth Fund. The successful bids are currently undergoing due diligence (apart from one which has completed the due diligence and has been provided with a final offer letter) before a final offer of funds can be made. In some cases to release information before an offer letter has been made may jeopardise current negotiations that are taking place and where the project does not get past the due diligence process it hinders their chances of applying to for other funding sources. Commercial information may also be used by competitors. While I accept the public interest in disclosing this information, as it would promote greater transparency in the bid process, I consider that the public interest lies in withholding this information while bidders are going through the due diligence process . Summary information on the conclusions of the due diligence process will be published on the BIS website, www.bis.gov.uk/rgf once all bidders have completed the process. However, it should be noted that this summary will not provide detail on why certain bids failed the due diligence as this could identify the project/bidder and thereby prejudice their commercial interests FOIA To the extent that any of the information not being disclosed is considered not to be environmental information and not subject to the EIRs, then I consider it to be exempt under section 40(2), 41(1) and section 43(2) of the FoIA. Section 40 I have relied on the exemption under Section 40(2) of the FOI (personal information). Personal data of third parties can only be disclosed in accordance with the data protection principles. In particular, the first data protection principle requires that disclosure must be fair and lawful and must comply with one of the conditions in Schedule 2 of the Data Protection Act.

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The exemption from the duty to disclose personal data, where to do so would breach a data protection principle, under Section 40(2) FOIA (Personal Information of Third Parties) is an absolute exemption. Where the bidder has agreed to release the information, personal details of the applicant have been withheld under Section 40 (2) FoIA because release of the information would violate the first data protection act principle as the individuals had no expectation that their personal information would be released. This is an absolute exemption where no public interest test is required to be met. Section 41 Section 41(1) provides that information is exempt if disclosure of the information to the public (otherwise than under the Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person. The bid document was supplied to the department in confidence. This information is subject to a duty of confidence and disclosure of the information would constitute an actionable breach of confidence. I am satisfied that the bid documentation in cases where the applicant has specifically indicated they do not want the information to be released should be exempt by virtue of section 41. We have specific direction from many of the successful bidders that their bid should not be released as it was provided to us in confidence. As a duty of confidence exists there is a strong public interest in protecting that confidence, and there are no public interest considerations in relation to this information requiring us to set the duty of confidence aside. These bidders have also confirmed that they would view release of this information as an actionable breach of confidence. Section 43 Section 43 (2) provides that information may be exempt information, subject to the public interest test, if the release of the information would, or would be likely to, prejudice the commercial interests of any person, including the public authority holding it. I agree there is a public interest in the disclosure of this information as it would help increase the transparency of the bid process. However, account has to be taken of the need to ensure that the commercial interests of third parties are not prejudiced or undermined by disclosure of information which is not common knowledge, and which could adversely impact on future business. In addition the Departments own commercial interests could be damaged as disclosure could damage our business reputation and the confidence our customers have in us, making them reluctant to provide us with commercial sensitive information in the future. In this case, we consider that the public interest in favour of disclosing such information is outweighed by the necessity to protect the commercial interests of third parties.

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I am satisfied that the public interest falls in favour of withholding the information you have requested. In your request you also asked for a copy of the assessment and scoring criteria used by the Panel to decide which applications should be funded. The assessment on each bid is a one page summary against the 5 criteria of the RGF which are published on the BIS website, http://www.bis.gov.uk/assets/biscore/economic-development/docs/r/11-845regional-growth-fund-information-for-applicants.pdf. The assessment grid used by the panel to make its decision contains commercially sensitive information specific to each bid and tendered in confidence and accordingly, is exempt, by virtue of the same reasoning as that set out above with respect to the individual bids, under sections 41, and section 43(2) of the Act, accordingly this information will remain withheld. If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at: Information Commissioner's Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF Yours sincerely,

Philippa Lloyd Director Economic Development Directorate

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