Dear MR TODD

FREEDOM OF INFORMATION REQUEST - REFERENCE NO: 002555/09

I write in connection with your request for internal review of the information which was provided by Derbyshire Constabulary on 18/12/2009. I note you seek review of the following information:

My complaint concerns the responses to questions 2 and 3 of my FOI

request of 24 November 2009 for "costs and contracts of the

Derbyshire Crime Map", which were to send me:

"(2) The costs incurred by the contractors related to building and

maintaining the site.

"(3) Copies of the contracts and agreements signed with these

contractors-- including any termination clauses which may have been

invoked following the launch of the national crime map."

The response by Derbyshire Constabulary to (2) was:

"We do not hold this information - it would be held by the

contractor not the Force."

This was a deliberately literal interpretation of my question,

which I had clearly intended to mean:

"What were the costs incurred TO THE DERBYSHIRE CONSTABULARY by the

contractors related to building and maintaining the site?"

The response by Derbyshire Constabulary to (3) was to cite an out

of context statement from a very obscure Tribunal Decision - N.

Ingle v Information Commissioner 29 June 2007 (EA/2007/0023), as

justification for refusing the disclosure of any document in

principle.

I should not need to outline the well-established principle that it

is in the public interest to publish contracts with suppliers in

order to create a fair marketplace. Numerous decisions by the

Commissioner and the Tribunal which you will be aware of attest to

that.

However, I will quote from an interview with the current

Information Commissioner, Chris Graham:

"It should be absolutely routine that details of contracts, value

of contracts, expenses, minutes of top-level meetings just should

be up there on departmental websites."

http://www.bbc.co.uk/blogs/opensecrets/2009/11/chris_graham_interview.html

I look forward to receiving information I requested relating the

the costs of this contract, and a copy of the contract itself, in

due course, as well as confirmation that the information practices

of the Derbyshire Constabulary have been updated to the appropriate

standard.

An Internal Review chaired by the Deputy Chief Constable has been held in relation to your request. I have been asked to convey the result to you as follows.

Result of Internal Review

In relation to your initial Question 2

The original question was both clear and unambiguous. It specifically asked for “the costs incurred by contractors related to building and maintaining the site”.

Only where a question is unclear or requires clarification are we required to contact the requesters to try and understand what is actually required. In this instance it was clear and we understood the question. We provided the correct response in relation to the question as posed as we do not hold that information as requested.

We receive hundreds of requests for information each year, many of which are lengthy, extensive and extremely complex. Great care is taken to try and research the information which is required. We go to great lengths to provide what is requested but with the best will in the world we are not psychic and have to believe that requesters know what they are asking for. The actual question posed within the original Question 2 is clear and unambiguous. We do not hold the information as requested and the correct response was provided.

With the number of requests we process on a daily basis we do not have the resources to try and imagine all the intricate reasoning which may lie behind a request. Where there is ambiguity we contact the requester to clarify what is actually wanted to see if we can assist. Where there is no ambiguity it would be wasteful of resources to make contact with requesters to clarify matters which do not need clarification or to presume that there is more requested than is actually asked for. Responses to Freedom of Information requests are free where the resource time required is below 18 hours, but there is a duty for public services to try and keep down the costs to the community in the provision of this information through resource requirement.

The claim therefore that the intention of your question was clear in terms of your “interpretation” is refuted - we can only presume that a requester is asking for the information they are requesting, not make assumptions as to their intentions. Indeed the “new - revised” version you have provided is less clear than the original. Our interpretation of your new “revised version” is that you are asking for the costs to the Derbyshire Constabulary which were paid for the contractor to develop and maintain the site. If that is the case then again the answer is Nil. The product was “purchased” as a completed framework host site for population of crime data by our staff and there was no development needed.

There was however a total overall payment of £2,486 during and under the terms and period of the contract for licensing and training of staff (to enable them to insert data into the framework).

Question 3

There are 2 specific issues relating to the information requested.

Firstly the demand by yourself for a copy of a document

English law is founded on National Statutory legislation. This legislation can be amended or clarified either by further enactments or as in this instance by the judgements of specially designated judicial decisions. Although this may not suit your current purpose the situation is that the quoted Information Tribunal Decision of Ingle is the definitive tribunal judgement on this issue and its very existence since 2007 shows that the decision has endured for some considerable time without need for amendment of interpretation.

Your inference that this is out of context is incorrect, indeed it is the definitive legal guide to the issue of access to documents or information and for the sake of formality I reproduce below the original explanation which is legally correct.

“In relation to your request to provide copies of documents, you should be aware that the Freedom of Information Act 2000 provides a right of access to information it does not provide a right of access to documents. The consideration by the public service is whether the provision of copies of documents, is in their view, the most effective and expedient manner of dealing with the issue of disclosure. The public service, in this instance, the Derbyshire Constabulary therefore has a choice to provide either

The legislation relating to this part of the request is Sections 1 and 84 of the Freedom of Information Act 2000. The legislation has been clarified by virtue of an Information Tribunal Decision. The current legal standing for this is Information Tribunal Decision - N. Ingle v Information Commissioner 29 June 2007 (EA/2007/0023) paragraph 7 which is reproduced below for your convenience

“The right to information conferred by section 1 of the Freedom of Information Act is just that, a right to information; it is not a right to see particular documents, but to the information contained within them. Moreover, information is defined in section 84 of the act as “information recorded in any form”. The Act only gives a right to recorded information”.

This by extension to Section 1 (1) (a) only relates to information which is recorded and held “at the time of receiving the request”.

The second issue which was addressed was whether within the contract there was any information which should not be disclosed.

A Harm, Public Interest Test and Balance Test were fully provided within the initial response. These indicated that there was information of a commercial sensitive nature contained within the contract which if disclosed would be detrimental to both the Force and the contractor if released.

Competitors regularly make FOI requests for contractual detail in order to improve their future chances of engaging contracts in competition with the same and other providers. The Information Commissioner has identified the levels of disclosure and agreed what could be pro actively disclosed on the publication scheme. This we already undertake as a responsible authority.

In terms of “Prejudice” the Information Commissioner's guidance clearly outlines the detrimental, in this instance, commercial activity in terms of competitive edge and also extends to include the very competitive environment in which this particular type of commercial enterprise exists. In this instance it is the manner in which the overall price is charged by reference to independent areas that has commercial interests not the overall cost. Disclosure would seriously damage the contracted company and also the Force itself in terms of future competitive bidding and our responsibility for effective use of public funds.

This was fully and adequately explained in the original response and needs no further elaboration.

For the sake of formality I again provide this part of the initial response for your convenience.

Section 17 of the Freedom of Information Act 2000 requires Derbyshire Constabulary, when refusing to provide such information (because the information is exempt) to provide you the applicant with a notice which:

(a) States that fact,

(b) Specifies the exemption in question and

(c) States (if that would not otherwise be apparent) why the exemption applies.

Section 43 - Prejudicial to Commercial Interests

Section 43 (1) and (2) applies where the disclosure relates to information which “constitutes a trade secret” (43(1)) or where disclosure of the requested information would be likely to be prejudicial to the commercial interests of any person, including the public authority.

This is a qualified and class based exemption and as such I am not required to show the harm in disclosure.

Reasons for Decision

The exemption under Section 43 of the Freedom of Information Act 2000 is a qualified exemption where disclosure of specific information would, or would likely to, prejudice commercial interests of any person, including the public authority holding it.

The information held can be viewed in both a macro and micro manner. The high level information regarding major contracts with the Force are provided as a part of the Freedom of Information Publication Scheme. However the contractual agreement in terms of hourly payments, minimum payments, and specific areas of contractual negotiation are not disclosed. These specifics are “the competitive edge” of the Rock Kitchen Harris (RKH) Company providing the service and the negotiated agreement of what the Derbyshire Constabulary would accept in the contract.

There is a competitive environment for such services and release of the detail above would be adversely affect the future negotiating position of both RKH and the Derbyshire Constabulary.

Harm would be caused to the commercial interests of RKH in their ability to compete competitively with other similar service providers in what is a very competitive market.

Harm would also be caused to the negotiating position of the public service i.e. Derbyshire Constabulary in their future attempts to achieve best value for the spending of public funding.

Public Interest Test

Public interest considerations favouring disclosure

Information relating to the use of public funds for these purposes will always be relevant to the public.

Public interest considerations favouring non-disclosure

The release of this information could assist individuals / companies in being aware of the relevant areas of negotiation to pinpoint in obtaining future contracts. Where this negotiation is with the public service (Derbyshire Constabulary) there would be an adverse prejudicial effect on the ability of the public service to negotiate a best value option.

It is in the public interest to ensure that companies are able to compete fairly for public sector contracts. Therefore the erosion that would occur to the competitive edge of RKH needs to be considered.

It would not be appropriate to release this information in relation to contract or agreement negotiation as this may put at risk the Derbyshire Constabulary's ability to secure future value for money. This would therefore also be an adverse prejudicial effect on the effective and best value option in the spending of public funds.

Balancing Test

On balance it is not in the public interest to release information which discloses the specific cost and integral parts details of the negotiated contract.

After weighing up the competing interests I have determined that the full disclosure of the above information would not be in the public interest. I consider that the benefit that would result from the information being disclosed does not outweigh disclosing information relating to the adverse prejudice to both the Derbyshire Constabulary and RKH in their possible future negotiations of similar contractual matters.

In accordance with the Act, this letter represents a Refusal Notice for this particular information i.e. copies of full contract and agreement within your request.

A summary of the “redacted” information from the contract was provided within the initial request.

Summary Comment

You make comment regarding the interview of the Information Commissioner. In particular you identify the following extract

"It should be absolutely routine that details of contracts, value of contracts, expenses, minutes of top-level meetings just should be up there on departmental websites."

I can only surmise that you have not had the opportunity to view our publication scheme content at www.derbyshire.police.uk as all these areas are covered fully and have been so for some years.

We refute the final comment you make relating to “confirmation that the information practices of the Derbyshire Constabulary have been updated to the appropriate standard”.

We comply correctly with the legal requirements of the Act and of tribunal decisions, and indeed regularly go beyond the requirements of the Act in an effort to provide information to requesters. Any decision as to the appropriateness of our standards would be addressed by the Information Commission who has not seen, over the period from the 1^st January 2005 onwards, to ask for any change or update in our standards. The force has not gone over time limits nor failed to assist applicants during this time. A recent check of our publication scheme by the Information Commissioner's staff has brought forward no detrimental comment in terms of content, continuity or currency. Indeed we have been complimented by many of the national and local media as one of the few public services who pro - actively promote disclosure logs to keep the public informed.

Complaint Rights

Your attention is drawn to the attached sheet, which details your right of complaint.

I would like to take this opportunity to thank you for your interest in Derbyshire Constabulary.

Should you have any further enquiries concerning this matter, please write or contact Stuart Barlow, Freedom of Information Manager, on telephone number 0345 123 3333 quoting the reference number.

Yours sincerely

Stuart Barlow

Freedom of Information Manager

Enc

Constabulary Headquarters Butterley Hall Ripley Derbyshire DE5 3RS
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