Payments to IBM/SW1: Details of FOI under appeal (original FOI by email)

Roedd y cais yn llwyddiannus.

Dear Avon & Somerset Constabulary,

From: Redacted
Sent: Wednesday, May 25, 2011 7:39 AM
To: #Freedom of Information Requests
Subject: Re: FOI Response 216/11 - Appealing refusal,

I wish to appeal the refusal to disclose the total cost of transformation on the following grounds:

a) The total cost figure of transformation across all three public partners is, quite properly, in the public domain already via the Audit Commission.

b) The cost of transformation has already been supplied by the other two partners (Somerset CC and Taunton Deane BC), so the precedent to disclose in the public interest is already set.

c) IBM/SW1 did not react adversely to the disclosure of the transformation costs from the other two public partners (Somerset CC and Taunton Deane BC), which negates your refusal reason below.

d) The disclosure of total transformation costs does reveal margin sensitive information for IBM/SW1, only the overall charge to the public purse. Note: ICO ruled in Veolia v Notts CC that refusal or redaction only applied to the small parts of a contract with a public body that were genuinely margin sensitive.

e) Last week the Chief Constable made savings claims on behalf of IBM/SW1 of £26m on BBC Radio. From a document published in March to ASPOLA, these potential savings claims include IBM/SW1 forecast savings that have not been signed off as accurate & achievable by his own Force’s Contract Management team. To date, signed off savings that have been verified by the Force’s Contract Management team as achievable show only £5m to end of contract in that same public document. This public disclosure of the IBM/SW1 “forecast savings” were not balanced by netting off the actual savings by admitting to the costs of spending with IBM/SW1 on transformation. Both sets of information need to be in the public domain for taxpayers to properly know whether savings claimed are genuine and net of costs.

Notes re e) above

The Avon & Somerset Police Chief Constable Colin Port sits as a Board Director on his supplier the private company Southwest One, which is 75% owned by the American multi-national IBM.

As a Director of Southwest One, he is required under the Companies Act to act in the best interests of Southwest One at all times.

However, as Chief Constable of Avon and Somerset Police, Colin Port is responsible for awarding the £185m contract to Southwest One (IBM) in 2008 and has transferred 630 Police staff into Southwest One.

Colin Port is also, as Chief Constable, ultimately in charge of the contract management oversight of Southwest One, to ensure value for money and for the planned savings delivery for the taxpayers of Avon & Somerset.

Did Colin Port make those public savings claims of £26m on BBC Radio as a Board Director of the privately owned (by IBM) supply company Southwest One or did he make those claims as the Chief Constable of Avon & Somerset Police?

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On the above grounds I believe that the public interest outweighs your arguments below and I formally wish to appeal.

If there is a further refusal to disclose this charge/cost, then it is my firm intention to appeal to the ICO, as I believe that this is an important test case for proper disclosure, impartiality & governance.

How can the “Big Society” be brought about with localism and accountability, if key information about Police spending with a private Company that the Chief Constable sits on the Board of is withheld?

Regards,

David Orr.

From: #Freedom of Information Requests
Sent: Tuesday, May 24, 2011 4:57 PM
To: Redacted
Subject: FOI Response 216/11

Corporate Information Management Department

Force Headquarters, PO Box 37, Valley Road,

Portishead, Bristol, BS20 8QJ

Facsimile 01275 814667

Private
Our Reference 216/11
Your reference
Date 24 May 2011

Dear Mr Orr

I write in connection with your request for information dated 23rd March concerning Southwest One.

Your request for information has now been considered and some of the information asked for is below following your questions.

Section 17 of the Freedom of Information Act 2000 requires Avon and Somerset 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.

Specifically you asked:

An Audit Commission report for Somerset CC reported in Nov 2010 that the total cost of Transformation paid to IBM/South West One by all public partners was £58m. Somerset CC has publicly confirmed that their share of that £58m was £48m.

1. How much have Avon & Somerset Police paid IBM/South West One for Transformation to date?

With regards to how much Avon & Somerset Police paid IBM/South West One for Transformation to date, I am unable to provide this information. The exemption applicable to this information is section 41 (1)(b) information provided in confidence, where the disclosure of the information to the public by the authority holding it would constitute a breach of confidence actionable by that or any other person. This is an absolute class based exemption and as such does not require a public interest test.

In addition section 43(2) commercial interests likely to prejudice the interests of any person holding it, is also engaged. This is a qualified and prejudice-based exemption and as such a harm and public interest test needs to be conducted.

Harm

The disclosure of the information requested would constitute an actionable legal breach of confidence surrounding the current contractual arrangements. As noted above an absolute exemption under Section 41 applies to these arrangements. This disclosure could render the forces vulnerable to civil proceedings.

Disclosure of the amount paid to SouthWest One for Transformation is commercially sensitive and would put IBM/ SouthWest One at a competitive disadvantage if shared, and therefore subsequently affect the commercial interests of the Constabulary as this would hinder the Constabulary's negotiation position to achieve competitive prices in the future, thereby increasing public expenditure.

Public Interest test

Factors favouring disclosure:

There is a public interest in the release of information, which demonstrates financial transparency and accountability, through scrutiny of the spending of public money.

In this case it may be in the public interest to release information relating to how much Avon and Somerset Constabulary have paid in relation to transformation. Such accountability will demonstrate whether or not value for money has been achieved by the force spending money wisely and effectively, which is in the public interest.

Where disclosure can assist individuals by raising awareness of issues, which may be of relevance to them. This could empower them to make more effective decisions about their own activities or contribute to more accurate public debate.

In this case, to provide in depth information to the public concerning the Southwest One Partnership including costs would assist in accurate public debate.

Where public funds are being spent, there is a public interest in accountability and justification.

In this case, disclosure of the costs involved for Avon and Somerset Constabulary, will provide a flow of information to the public to allow the justification of the use of public funds.

Factors favouring non- disclosure:

The disclosure of the information requested would constitute an actionable legal breach of confidence surrounding the current contractual arrangements. This disclosure could render the forces vulnerable to civil proceedings.

In this case, IBM and the Constabulary are partners within Southwest One, information relating to the cost of transformation is sensitive as the information if disclosed could undermine any future negotiating position that the Partnership may have, because competitors would therefore gain advantageous information. Within a competitive environment, this information could be used by other competitors to glean information that may be advantageous to them in any other tendering process. As such, the release of sensitive commercial information relating could adversely affect their interests.

In addition to the above, the highly competitive market that IBM function in adds weight to the fact that releasing this information would be likely to negatively impact on their commercial interests. This view is based on guidance issued by the Information Commissioner, which indicates that the level of competition in an industry will effect whether the release of information will harm someone’s commercial interests, and that prejudice is more likely to occur where disclosures are made in a competitive market. The chance of prejudice being suffered in this case is more than a hypothetical or remote possibility.

In this case, disclosure of costs related to Transformation may provide an advantage to some competitors and not others. This could result in damage to the reputation or business confidence which would undermine the relationship between the Constabulary and its current supplier and in addition any potential suppliers, making it more difficult for the force to perform its public service functions.

Balance test

On balance, the damage incurred by release of this information is likely to prejudice the commercial interests of SouthWest One, including a possible actionable breach of confidence against the constabulary and the possibility of increased public expenditure in the future, outweighs the benefit of accountability for public funds. After weighing up the competing interests, I have determined that the disclosure of the above information would not be in the public interest.

In accordance with the Act, this letter represents a Refusal Notice for this specific information.

2. How many Avon & Somerset Police employees (including any employees seconded to South West One) have a seat/license for SAP Employee self-service (ESS)?

The Constabulary have purchased 5270 licences which are sufficient to cover all Constabulary employees who need access to SAP.

3. It has been reported that a key new system for "Workforce Planning" (part of SAP Release 2 & used for Police shifts/rotas) has not been delivered by IBM/South West One. When will the "Workforce Planning" system be delivered? Have any payments for this un-delivered system been withheld? If so, how much payment has been withheld from South West One?

When SAP was implemented in ASC, the Constabulary and Southwest One agreed to defer implementation of the workforce management module, and the Constabulary has not yet paid for that module. The Constabulary is working with Southwest One on plans for implementation of this module in due course.

4. Procurement by IBM/South West One is a shared service for all public partners. Do all the public partners report procurement savings using the same terminology to describe proposed/planned/forecast savings by South West One, savings agreed/signed off between South West One & the Police, actual cash savings received/realised etc? If not, why not?

In relation to procurement savings; Governance, reporting and terminology is exactly the same across all the partners.

I would like to take this opportunity to thank you for your interest in Avon and Somerset Constabulary.

Yours sincerely

Freedom of Information Officer

Freedom of Information Officer
Corporate Information Management Department

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Yours faithfully,

Dave Orr

Gadawodd Dave Orr anodiad ()

Correction as word NOT missed in key point:

d) The disclosure of total transformation costs does not reveal margin sensitive information for IBM/SW1, only the overall charge to the public purse. Note: ICO ruled in Veolia v Notts CC that refusal or redaction only applied to the small parts of a contract with a public body that were genuinely margin sensitive.

Gadawodd Dave Orr anodiad ()

This FOI started as an email. On appeal the Avon & Som Police admitted that the refusal did not comply with the act and disclosed that £8.4m had been spent on SAP from IBM/Southwest One.

Extract:

I have reviewed the basis for the Refusal Notice and taken account of the grounds for the appeal. I am not satisfied that the Refusal Notice was issued in accordance with the Act and therefore do not uphold the original response.

Question one was: How much have Avon and Somerset Police paid IBM/South West One for Transformation to date?

Answer: £ 8,393,906