FOI, SAR and DPA software solutions and associated contracts

FOI request reference: CAS-66604-V3C6Y6
Publication date: January 2021

Outcome
Some information provided.

Request and response 
1. What, if any, software will be used for managing and tracking FOI, Subject Access, DPA disclosure requests?
Disclosing software solutions will reveal the software brand and information regarding software brands is exempt under section 31 (1) (a) of the FOI Act.

2. If bespoke software is to be used, is the contract already in place – what was the start date, duration and value of the contract?
There exist two contracts in relation to tracking FOI and SAR requests.

Contract A start date is in Qtr. 2, 2018-19 for 3 years duration.
Contract B start date is in Qtr. 1, 2020-21 for 1 year duration.

Information regarding specific start dates is exempt under section 31 (1) (a) of the FOI Act.

For contracts under £10,000, contract value information is covered by the exemption at section 43 (2) of the FOI Act. Information about all contracts with a value over £10,000 are published in the public domain, and can be found at https://www.contractsfinder.service.gov.uk/

3. Is there an extension clause in the contract and, if so, the duration of the extension?
There is no extension clause in either contract.

4. Who is/will be the senior officer/s (outside of procurement) responsible for managing the FOI, Subject Access, DPA disclosure request process?
The overall responsibility for managing the FOI, Subject Access, DPA disclosure request process are held by:

Lucy Fletcher
Director of Government and Information Rights

The National Archives’ full contact options can be found on our website here: http://apps.nationalarchives.gov.uk/contact/

EXPLANATORY ANNEX   
Exemptions applied

Section 43 (2) – Commercial Interests

This section exempts information whose disclosure would be likely to prejudice the commercial interests of any person. In this case, the exemption applies because it would be likely to harm or prejudice the commercial interests of our current and potential future suppliers. 

Section 43 (2) is a qualified exemption and we are required to conduct a public interest test when applying any qualified exemption. This means that after it has been decided that the exemption is engaged, the public interest in releasing the information must be considered. If the public interest in disclosing the information outweighs the public interest in withholding it then the exemption does not apply and must be release. In the FOIA there is a presumption that information should be released unless there are compelling reasons to withhold it.

Considerations in favour of the release of the information included The National Archives’ commitment to openness and transparency in its commercial activities, to allow public scrutiny and to demonstrate that public funds are being used in an efficient and effective way. Furthermore private sector companies engaging in commercial activities with the public sector must expect some information about those activities to be disclosed.

Considerations against disclosure included the recognition that disclosure is likely to provide information to direct competitors within the market that would create an imbalance and a commercial advantage to those competitors. Furthermore disclosure of this information is also likely to affect The National Archives’ ability to negotiate contracts in the future and consequently generate revenue from non-public funds. It is also considered that disclosure would be likely to deter potential bidders for future contracts from competing and sharing commercially sensitive information with us. This would outweigh any benefits of release. It was therefore decided that the balance of the public interest lies clearly in favour of withholding the material on this occasion

Further guidance can be found at:
http://ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Freedom_of_Information/Detailed_specialist_guides/AWARENESS_GUIDANCE_5_V3_07_03_08.ashx

Section 31: Law Enforcement
We are unable to provide you with information regarding software brands and specific contract start/end dates because this information is exempt from disclosure under section 31 (1) (a) of the FOI Act. Section 31 (1) (a) exempts information if its disclosure is likely to prejudice the prevention or detection of crime.

Section 31 is a qualified exemption and we are required to conduct a public interest test when applying any qualified exemption. This means that after it has been decided that the exemption is engaged, the public interest in releasing the information must be considered. If the public interest in disclosing the information outweighs the public interest in withholding it then the exemption does not apply and the information must be released. In the FOI Act there is a presumption that information should be released unless there are compelling reasons to withhold it.

The public interest has now been concluded and the balance of the public interest has been found to fall in favour of withholding information covered by the section 31 (1) (a) exemption. Considerations in favour of the release of the information included the principle that there is a public interest in transparency and accountability in disclosing information about government procedure and contracts. However, release of this information would make The National Archives more vulnerable to crime. The crime in question here would be a malicious attack on The National Archives’ computer systems. As such release of this information would be seen to prejudice the prevention or detection of crime by making The National Archives’ computer system more vulnerable to hacking.

There is an overwhelming public interest in keeping government computer systems secure which would be served by non-disclosure. This would outweigh any benefits of release. It has therefore been decided that the balance of the public interest lies clearly in favour of withholding the material on this occasion.

Further guidance on section 31 can be found here:
https://ico.org.uk/media/for-organisations/documents/1207/law-enforcement-foi-section-31.pdf