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Enquiries to: Wendy Twigge Your Ref: Our Ref: FOI/32037 APPEAL |
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Mr Julian Todd |
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Date: 28 September 2010 |
Dear Mr Todd
Freedom of Information request 32037
I write regarding your request under the Freedom of Information Act 2000 in which you requested the following:
May I have a copy of the contract(s) signed between Liverpool City Council and BT in 2001 relating to the establishment and duties of Liverpool Direct Limited please?
As you are aware there has been in depth involvement from both British Telecom (BT) and the Information Commissioners' Office (ICO) and in line with the recommendation of the ICO we can now provide the following response
All requested information has been provided. However, the following exemptions remain in place relating to the following parts of the contract(s)
Limits of Liability - (all limits redacted)
This exposes the commercial position of those involved with regard to limitations on liability and can be of use to competitors in future competitions. Future competitors would have direct knowledge of the attitude to exposure under this type of contract and could use that to their advantage.
Therefore this information remains redacted.
The information contained within the above section is considered to be exempt from disclosure by virtue of Section 43. The release of this information is likely to prejudice the commercial interests of any person. (A person may be an individual, a company, the public authority itself or any other legal entity).
The effect of such a release would prejudice the ability to negotiate further terms under the contract and would impinge on our working relationship with our contractor (in this instance BT) who has advised us of their unwillingness to release information.
We have fully considered their arguments and then considered the content of the clause itself and based on the content the release of this information would be likely to prejudice one or all of the parties to the contract.
We have considered a test of prejudice, in the following way:
This information is not generally available and if released would be likely to prejudice someone's commercial interest (someone being any or all of those involved).
The information relates to and may also impact upon a commercial activity as it identifies the limits of liability, which are not linked directly to the ability to compete and engage in commercial activities but would impact on their ability to engage in competitive commercial activities as the release of this information would expose the commercial position in relation to limitations on liability.
The contract is a commercial venture and all parties to it operate within competitive environments. The information contained within Clauses 43 would affect the ability to negotiate future contracts if the information contained within this clause was placed in a public arena.
There would be a significant risk of harm should the information within this clause be released and therefore one and or all those involved would be likely to be prejudiced as a result of disclosure.
The public interest test was also again considered and the following factors were used to determine whether the public interest favoured disclosure or whether the public interest in maintaining the exemption outweighed the public interest in disclosure:-
Accountability in relation to the spending of public money -The release of the information would merely serve to provide competitors with a significant advantage against their rivals.
Competition issues - There is public interest in ensuring companies compete fairly however if this information was released into the public arena this would have the effect that those involved would be placed at a significant disadvantage to the competitive rivals in their ability to compete for tenders (LDL and BT) the effect on LCC would be that they would be at a significant risk of legal action being taken against them should the information be disclosed as this would be a breach of confidence, breach of contract and the loss of any further contracts/revenue by BT/LDL may be pursued against LCC which would be harmful to the authority and against the publics interest.
Therefore we maintain this exemption as we believe that the public interest in maintaining the exemption outweighs the public interest in disclose at this time.
The information is also exempt under section 41 in relation to information which has been provided in confidence. The disclosure of this information would give rise to an actionable breach of confidence which is likely to result in Liverpool City Council being taken to court.
The condition has been explicitly stated within the contract and BT have informed us in the course of our consultation that they wish to maintain this exemption as they believe the information has been provided in confidence and they do not provide their permission to release this to anyone else.
The information contained within this clause, is not readily available by any other means and therefore without consent from BT we are unable to release this information to the requestor. Under section 47.1 of the Service Level Agreement there is a confidentiality agreement signed up to by all parties. This outlines that all parties shall keep confidential all matters obtained in connection with or relating to this contract, the joint venture agreement, the secondment agreement and arising from the funding agreement and services and shall use all reasonable endeavours to prevent their employees and agents from making any disclosure to any person of any matter relating to the contract.
The authority is satisfied that the confidentiality clauses provide the third party, BT with the legal empowerment to take legal action against Liverpool City Council for a breach of contract and confidentiality.
Schedule 21. Termination Payments
This exposes the commercial position of those involved with regard to limitations on liability and can be of use to competitors in future competitions. Future competitors would have direct knowledge of the attitude to exposure under this type of contract and could use that to their advantage.
Therefore this information remains redacted.
The information contained within the above section is considered to be exempt from disclosure by virtue of Section 43. The release of this information is likely to prejudice the commercial interests of any person. (A person may be an individual, a company, the public authority itself or any other legal entity).
The effect of such a release would prejudice the ability to negotiate further terms under the contract and would impinge on our working relationship with our contractor (in this instance BT) who has advised us of their unwillingness to release information.
We have fully considered their arguments and then considered the content of the clause itself and based on the content the release of this information would be likely to prejudice one or all of the parties to the contract.
We have considered a test of prejudice, in the following way:
This information is not generally available and if released would be likely to prejudice someone's commercial interest (someone being any or all of those involved).
The information relates to and may also impact upon a commercial activity as it identifies the limits of liability, which are not linked directly to the ability to compete and engage in commercial activities but would impact on their ability to engage in competitive commercial activities as the release of this information would expose the commercial in relation to limitations on liability.
The contract is a commercial venture and all parties to it operate within competitive environments. The information contained within Clauses 43 would affect the ability to negotiate future contracts if the information contained within this clause was placed in a public arena.
There would be a significant risk of harm should the information within this clause be released and therefore one and or all those involved would be likely to be prejudiced as a result of disclosure.
The public interest test was also again considered and the following factors were used to determine whether the public interest favoured disclosure or whether the public interest in maintaining the exemption outweighed the public interest in disclosure:-
Accountability in relation to the spending of public money -The release of the information would merely serve to provide competitors with a significant advantage against their rivals.
Competition issues - There is public interest in ensuring companies compete fairly however if this information was released into the public arena this would have the effect that those involved would be placed at a significant disadvantage to the competitive rivals in their ability to compete for tenders (LDL and BT) the effect on LCC would be that they would be at a significant risk of legal action being taken against them should the information be disclosed as this would be a breach of confidence, breach of contract and the loss of any further contracts/revenue by BT/LDL may be pursued against LCC which would be harmful to the authority and against the publics interest.
Therefore we maintain this exemption as we believe that the public interest in maintaining the exemption outweighs the public interest in disclose at this time.
The information is also exempt under section 41 in relation to information which has been provided in confidence. The disclosure of this information would give rise to an actionable breach of confidence which is likely to result in Liverpool City Council being taken to court.
The condition has been explicitly stated within the contract and BT have informed us in the course of our consultation that they wish to maintain this exemption as they believe the information has been provided in confidence and they do not provide their permission to release this to anyone else.
The information contained within this clause, is not readily available by any other means and therefore without consent from BT we are unable to release this information to the requestor. Under section 47.1 of the Service Level Agreement there is a confidentiality agreement signed up to by all parties. This outlines that all parties shall keep confidential all matters obtained in connection with or relating to this contract, the joint venture agreement, the secondment agreement and arising from the funding agreement and services and shall use all reasonable endeavours to prevent their employees and agents from making any disclosure to any person of any matter relating to the contract.
The authority is satisfied that the confidentiality clauses provide the third party, BT with the legal empowerment to take legal action against Liverpool City Council for a breach of contract and confidentiality.
If you remain dissatisfied you may also apply to the Information Commissioner for a decision about whether the request for information has been dealt with in accordance with the Freedom of Information Act 2000.
The Information Commissioner's website is www.ico.gov.uk and the postal address and telephone numbers are:-
Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF. Fax number 01625 524 510, DX 20819, Telephone 01625 545745. Email - [email address] (they advise that their email is not secure)
I trust this information satisfies your enquiry.
Yours sincerely
Mr Kevin Symm
Senior Information Officer
Information Team, Legal Services Municipal Buildings Dale Street
Liverpool L2 2DH
Telephone 0151 225 3132 Fax 0151 225 2392
Email [email address]
