Edward Mandla
Dysfunctional Tendering and “Managed Democracy” failing Public Interest through Inappropriate Confidential Classification of Documents – Part 1

Published On: 28/07/2014

Last week was very uncomfortable as I shone a light on the systematic wholesale classification of documents as confidential.

In my opinion, The City of Sydney is misclassifying information that is not confidential as confidential through an overuse and abuse of section 10A(2)(d) of the Local Government Act.

This item like all tender items has information classified as Confidential.

The Act clearly states that information is only confidential if it would, if disclosed:

  1. Prejudice the commercial position of the person who supplied it, or
  2. Confer a commercial advantage on a competitor of the council, or
  3. Reveal a trade secret,

The confidential information has a general Evaluation Criteria and Weightings. Although it may follow some City of Sydney back office KFC formulation of 7 ingredients and formulas – it’s hardly a trade secret – so the Act is breached.

There’s our Christmas Budget information that is public information so it can’t be classified as Confidential but is.

One can only wonder how on earth a general commentary about how wonderful a Tenderer is and well intentioned in their aims could be confidential and under the Act and prejudice them.

I argued the tenderers and their prices ought to be made public. I walked the Chamber through tenders. How once you submit your tender – that’s it – it’s all public. Once we open the tender box, the names of the tenderers are made public and we note their prices. A tenderer has rightly surrendered all in the Public Interest.

But no, we heard how it might be problematic for the City if we disclosed this. It might hurt us if we try and push them down further for price. We heard it might be inconvenient for us. We heard it might be against our internal policies and we heard it might embarrass us.

Problem is, none of this matters – it’s not about us it’s about the Act.

I was blown away at how elected and non-elected people in this Chamber were able to just make it up on the fly and apply every reason why tenderer information must be kept confidential.

Over and over, I asked the same question which everyone dodged around and refused to answer: “How can information that you’re our preferred tender and disclosure of your price hurt you?”.

The refusal of this question to be answered was a shameful breakdown of transparency and democracy.

At least Cr Mant, stepped up and answered the question that information on the recommended tendered being made public wouldn’t prejudice them.

But I’m afraid Lord Mayor, that I have some “bad news”.

I asked for the tender documents for this item and all our tender items tonight.

What I found was truly enlightening.

All our tenders have a standard clause 11 that says to the tenderers, we can’t offer you confidentiality. We say “Information supplied by a Tenderer will not be treated as commercially sensitive” and even if you want it confidential you probably can’t have it as it’s subject to disclosure to the public under the Government Information (Public Access) Act 2009!

Let’s go back to last week. The Chamber was told that this type of information had to be confidential and that was not only essential, but ICAC required it, and the Local Government Act and Regulations demanded.

That’s a complete fabrication.

Edward Mandla
July 2014

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