After having established that a decision was incorrect on several issues, the State Administration requested an emergency service organised as an inter-municipal enterprise to resume the matter and make a new decision. The inter-municipal enterprise had referred to section 30, no. 2 of the Act on public access to documents in public files (the "Act") as the basis of exempting information in consideration of the inter-municipal enterprise's future possibilities of putting out operational assignments to tender.

The State Administration's request of 30 January 2017 is based on the inter-municipal enterprise's partial dismissal of the request for access to documents. The request concerned draft minutes of a meeting containing information relevant for the tender procedure.  The inter-municipal enterprise had dismissed the request with reference to section 23 (1), no. 1 of the Act, which exempts internal documents, and section 30, no. 2 of the Act, which exempts business information if this is of significant financial importance to the company to which the information relates.

The State Administration found that the emergency service's application of section 23 (1), no. 1 was correct, and the request to reconsider the decision does therefore not include this provision. But the State Administration still requested reconsideration of the decision as several provisions in the Act had not been applied in accordance with applicable law.

BUSINESS INFORMATION CANNOT BE EXEMPTED FROM ACCESS TO DOCUMENTS WITH REFERENCE TO THE AUTHORITY'S OWN INTEREST

The State Administration noted that section 30, no. 2 of the Act does not make it possible to exempt information referring to the authority's (in this case, the emergency service) own interest. The inter-municipal enterprise's justification of the exemption was that access to documents would involve the risk of substantially impaired competition and thereby financial damage to the inter-municipal enterprise, the next time the inter-municipal enterprise was to put out the operational assignments to tender.

In this connection, the State Administration dismissed that section 30, no. 2 may be applied in the specific case as the financial damage described only concerned the inter-municipal enterprise. The State Administration emphasised that section 30, no. 2, can only justify exemption from access if the substantial financial damage concerns other companies than the authority.

IMPACT ON TENDER PROCEDURES AND FUTURE ACCESS TO COMPETITION-SENSITIVE DATA

The statement is relevant for future requests for access to information concerning tender procedures because the State Administration clearly rejects that the consideration for an open competition concerning an authority's future tender procedure is covered by section 30, no. 2 of the Act.

However, the State Administration emphasises that, with this statement, it has not decided whether information may be exempted under other provisions in the Act.
The company now has to consider whether section 33, no. 3 of the Act on public financial interests should be applied as a ground if the emergency service still wishes to exempt the minutes. According to the legislative history behind section 33, no. 3 of the Act, it is the purpose of the provision to ensure that public authorities can obtain tender bids from private companies in connection with procurements (White Paper no. 1510/2009, p. 679).

contacts

Andreas Christensen

Partner

Line Markert

Partner

Rikke Søgaard Berth

Partner

Charlotte Kunckel

Specialist Attorney

Payam Samarghandi

Assistant Attorney