Gill,
I thank you for your email dated 18 May and from the information supplied by Comensura have been able to draft part of the response to the FOI request as indicated below. However, I still need from you theCouncil's response to questions 4 to 11 below because Comensura have said that it is OK for the Council to release the information requested.
I look forward to hearing from you ASAP. The time limit for responding to the FOI request was 20 April and the Council is now one month overdue.
Peter Hassett
Principal Solicitor (Constitution Issues)
Legal and Democratic Division
Business Support Services
Wigan Council
Town Hall
Wigan
WN1 1YN
Tel. 01942 827381 (ext.2381)
This email together with any files transmitted with it are confidential and intended solely for the use of the individual to whom they are addressed. The information may be covered by legal professional privilege. Do not copy, disclose or distribute the information. If you are not the addressee, please contact the sender and immediately delete this email and any attachments.
Dear A. Elliott,
I thank
you for your email dated 22nd March below and would advise you that Comensura
Limited considers the following items to be deemed commercially
sensitive:
Comensura’s negotiated Mark-Up agreements with their Panel
Vendors
Details of Comensura’s commercial pricing deal with the
authority
Comensura Processes and Operating procedures
Any details
referring to the names of Comensura's team
CV details of Comensura's
team
Comensura's own internal management structure
Any details relating to
our management information system (C-net)
Section 43 is very clear in that
it states:
43 Commercial interests
(1) Information is exempt
information if it constitutes a trade secret.
(2) Information is exempt
information if its disclosure under this Act would, or would be likely to,
prejudice the commercial interests of any person (including the public authority
holding it).
(3) The duty to confirm or deny does not arise if, or to the
extent that, compliance with section 1(1)(a) would, or would be likely to,
prejudice the interests mentioned in subsection (2).
In my view the fact
that the information requested would be a trade secret there is no need for
there to be any consideration as to the harm it would cause by its
disclosure. The disclosure would cause us harm and therefore it should
remain a trade secret. However, Section 43 is a "Qualified Exemption" i.e. it is
not an absolute right which affords the information total protection.
Therefore, as in all things in the law there is a small snag. There is an
overriding obligation towards disclosure by a Public Authority even where there
is an exemption. The Public Authority must consider the commercial
sensitivity against what is called the Public Interest Test. What this
states is that where the Public Authority is satisfied that the trade secret or
that its release would prejudice someone's commercial interest it can only
refuse to provide the information if it is satisfied that the public interest in
withholding outweighs the public interest in disclosure.
In our
particular case I would argue the following:
1. The disclose of the
information would have a material impact upon the commercial interests of the
company in that the information would provide to our competitors information
which would have a material impact upon our commercial viability;
2. By
disclosing the information it would damage the reputation and or business
confidence in the company. This would apply in that it would show our
suppliers the rates being paid to other suppliers this could have an impact upon
the investors in the company if the competitive edge of the company were to be
impacted.
3. The margins upon which our offer is made is clearly
commercially sensitive.
4. The disclosure of the information will
not:
further the understanding of and participation in a debate of the
issues of the day;
facilitate the accountability and transparency of public
authorities for decisions of spending by them;
allow individuals to
understand decisions made by public authorities; or
bring to light
information on public safety.
5. The disclosure of the information
would not be in the public interest in that none of the above conditions
apply. The only beneficiary of any disclosure is a competitor of the
Company. Please note that Comensura's pricing is based upon a package of
services that are provided and the pricing model takes into account the services
(management time, expertise, software and its development over time
etc).
Subject to the above Wigan Council's response to you request for information below in indicated in blue within your email.
If you are unhappy with any aspect of this response, an
independent senior officer will review this decision. Please let me know if you
would like to arrange this.
You can also complain to the Information
Commissioner, who is the regulator for Freedom of Information. His website is:
www.informationcommissioner.gov.uk and his helpline number is 01625 545745. His
staff may ask you to exhaust our internal complaints procedure if you choose to
complain to his office now.
Peter
Hassett
Wigan Council
-----Original
Message-----
From: A Elliott [
Response - Not applicable for disclosure as per above response.
2. all agencies on the
Comensura contract for the supply of social
workers,
senior practitioners, assistant team managers, team
managers and service managers (referred to from now as
"qualified
social work professionals") to Wigan
Borough Council
Response - Comensura manage the engaged agency community on behalf of the authority and this can change on a daily basis. As such any data released around suppliers engaged could therefore be detrimental to a new/old suppliers business who’s status as a supplier changes but is not updated on released information.
3. all
agencies currently supplying Wigan Borough Council
with
agency social work
professionals
Response - The contract to supply staff is with Comensura and therefore it is not appropriate to provide a list of agency names.
4. the
total number of qualified social work professionals
currently working on an agency basis at Wigan Borough Council
Response - Numbers can be released, however names and supplying agencies are not appropriate as per above.
5. the
number and grade of qualified social work
professionals
currently working on an agency basis
at Wigan Borough Council by
supplier
Response - Number of agency workers by Job Title is appropriate, however it could potentially be detrimental to a suppliers business if this is released including agency supplier as per above, so this should be quoted as supplied via Comensura.
6. the number and grade of
qualified social work professionals
currently
working on an agency basis at Wigan Borough Council
by
department
Response - A count of temporary workers by job title and Directorate/Department can be released at your discretion. As per above this should not include individuals names or supplying agency.
7. the pay
and agency charge rate of each qualified social work
professional currently working on an agency basis at Wigan
Borough
Council by department
Response - The pay rates defined by job title can be released, however agency workers, agencies and charge rates would be exempt from FOI as per above.
8. the
fiscal budget for qualified social work professional
recruitment through agencies for
2009-2010
Response - This information can be released at your discretion, as it has no bearing on the contractual arrangement.
9. the fiscal budget for
qualified social work professional
recruitment
through agencies for 2010-2011
Response - This information can be released at your discretion, as it has no bearing on the contractual arrangement.
10. the total fiscal spend on
agency qualified social work
professionals by
department for the last 12 months
Response - This information can be released at your discretion, as it has no bearing on the contractual arrangement, on the proviso that spend is not broken down by individual supplier.
11. the total fiscal spend on agency qualified
social work
professionals by agency for the last 12
months
Response - Spend by Job Title can be released, however it could prove detrimental to a suppliers business if individual spend by supplier is identified, so this should be released as spend through Comensura who your contractual/commercial arrangement is with.
Yours faithfully,
A
Elliott
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