Dear City of Edinburgh Council,
I would like to request the following information:

1) The full details of what the Edinburgh City Council Pension Fund currently invests in, including the name and amounts of each asset class or investment being held.

Ideally this information would be broken down into the different categories, including: Index Linked Securities, Unit trust Property, Cash Instruments, Unit Trust Equities, Infrastructure, Fixed Interest Securities, Equities Segregated Unlisted, Equities Segregated UK, Equities Segregated Foreign as well as any other investments that the Pension Fund holds.

2) A full list of all the companies which the Pension Fund currently invests in (this should be covered in the above question). This list should include the names of each company and
the amount invested in each company.

3) The current yields of the different investments the pension fund holds.

4) Can you clearly specify the total value of all investments that the Pension Fund holds.

5) I would like to receive this information in an unlocked excel sheet without protext cells (.xls). If you have to password protect the excel sheet, can you also provide the password to the excel sheet.

I would like to receive the information in electronic format if possible. If one part of the request can be answered sooner than others, please send that information first followed by any
subsequent data. If you need further clarification, please contact me by email.

Many public authorities release their contracts, minutes and other information of interactions with private vendors in line with the Freedom of Information Act. The exemption for commercial interest under the Act (section 43) is a qualified exemption, which means information can only be withheld if it is in the public's interest. The public have an interest in knowing what the Pension Fund is investing in, the terms of contracts and the minutes of meeting with public authorities, whether or not public money changes hands immediately.

If you are relying on section 41 (the exemption for legal breach of confidence) then I would like to know the following:

* When these confidentially agreements were agreed
* All correspondence and email in which these confidentiality agreements were discussed
* The precise wording of the confidentiality agreements.

I ask these questions because guidance issued by both the Lord Chancellor (draft guidance on FOI implementation) and the Office of Government Commerce (Model terms and conditions for goods and services) specifically state that public authorities should not enter into these types of agreements; they go directly against the spirit of the laws of disclosure. I would also point to the Information Commissioner's guidance on accepting blanket commercial confidentiality agreements: 'Unless confidentiality clauses are necessary or reasonable, there is a real risk that, in the event of a complaint, the Commissioner would order disclosure in any case.'(i)

Finally, within the law of confidence these is also a public interest test. Therefore, the information should be disclosed in full. If any parts are redacted they must be for information that can be proven to be a legal breach of confidence in court, and only then where secrecy can be shown to be in the public interest. These are difficult positions to argue when public money is at stake or where a public authority is offering a private company a monopoly to charge its stakeholders.

I reserve the right to appeal your decision to withhold any information or to charge excessive fees, and understand that under the act, I am entitled to a response within 20 working days. I
would be grateful if you could confirm in writing that you have received this request.

Yours faithfully,

Harry Corton

(i) 'Freedom of Information Awareness Guidance 5: Commercial Interests' Office of the Information Commissioner, Page 10,
http://www.ico.org.uk/for_organisations/...

Dear City of Edinburgh Council,

I want to clarify that I am requesting the information for the Lothian Pension Fund, administered by Edinburgh Council. Sorry that I did not make that clearer in the previous message.

Yours faithfully,

Harry Corton

Dear Information Compliance,

Many thanks for your response, however the information you sent did not contain the full information I requested.

To make it clear, the kind of information I am requesting is similar to this from East Sussex County Council:

https://www.whatdotheyknow.com/request/1...

The above link has full details of all its investments in the different types of assets, including cash, property, equities, etc. It also gives the current market values of those investments.

Ideally could you provide an excel spreadsheet with the information I requested, as East Sussex County Council has done previously?

Yours sincerely,

Harry Corton

Dear R Williams,

Many thanks for this. I was hoping you could confirm a few things. Firstly, when adding everything up on the excel sheet you sent, the total value came to £3,799,213,486.88. Can you confirm that this is correct?

Also, in the list of investments you have given:

Real Estate - Limited Partnerships 72,418,159.48
Infrastructure - Limited Partnerships 200,485,776.17
Private Equity - Limited Partnerships 200,947,038.89
Timber & Agriculture - Limited Partnerships
50,621,149.35

Can you give the full details of those investments, rather than just giving overviews?

Finally, apart from those above, can you confirm that the spreadsheet has the full details of the pension funds investments?

Yours sincerely,

Harry Corton

Dear City of Edinburgh Council,

I am still awaiting a response to my email on the 7th March. Could you please chase this up?

Yours faithfully,

Harry Corton

Dear City of Edinburgh Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of City of Edinburgh Council's handling of my FOI request 'City Of Edinburgh Pension Fund'. (EDIR2950/SD.32/PB.)

In your response, where you denied full disclosure of all of the information requested, you stated:

---

“Please also note that whilst more information is now being provided on investments made into Limited Partnerships, the valuation of a limited number of Private Equity partnerships has been omitted as the Fund has confirmed that disclosing the values would be prejudicial to its commercial interest due to the stage in its investment cycle and its current business activity.

Under the terms of the Act, a request for information can be refused where one or more exemptions listed in the legislation apply. In this instance, the Council is applying the following exemption to the information that you have requested:

• Section 30 (c ) prejudice to the effective conduct of public affairs
• Section 33(1)(b) commercial interests
• Section 6 companies which are not wholly publicly owned

While the public may be interested in the details of the investments of the Pension Funds there is a greater public interest in the Pension Funds being able to maximise the capital value and revenue income streams and that nothing is disclosed which could damage either the Pension Fund or the Private Partnership.

Section 6 of the Freedom of Information (Scotland) Act 2002 defines publicly owned companies subject to that legislation; the activities of partly privately owned partnerships are outside the scope of that legislation.

Please note that this letter constitutes a formal refusal notice under section 16 of the Freedom of Information (Scotland) Act 2002.”

----

When conducting the internal review I would like you to consider the following arguments in favour of disclosure of the information I requested.

1) There are many local authorities which already publish the full details I am requesting for their respective pension funds on their websites. Here are some examples:

Norfolk Pension Fund:
https://www.norfolkpensionfund.org/pensi...

Staffordshire:
http://moderngov.staffordshire.gov.uk/do...

Greater Manchester Pension Fund (a fund which has a current market value around £11,760,179,071)
http://www.gmpf.org.uk/investments/holdi...

There are also many local authorities which have published the full information I am requesting through previous Freedom of Information requests, some of which are public on whatdotheyknow.com, while others have been held privately. I will give examples of some which have been made publicly (and if you request I can also provide you with examples from almost all other local authorities pension funds providing similar information privately).

East Sussex County Council:
https://www.whatdotheyknow.com/request/e...

West Sussex County Council:
https://www.whatdotheyknow.com/request/w...

Bedford Borough Council
https://www.whatdotheyknow.com/request/b...

Within Scotland, if you request, I can show you similar private Freedom of Information requests which have been resulted in the full disclosure of the information I requested for: Strathclyde Pension Fund (Glasgow), Dumfries and Galloway Council, Dundee City Council, Falkirk Council, Fife Council, Orkney Islands Council, Shetland Islands Council, Scottish Borders Council, The Highland Council, The North East Scotland Pension Fund (Aberdeen City Council). Of all these only the Lothian Pension Fund, administered by Edinburgh Council, have refused to release some information about their investments.

There are many more examples for the rest of the UK – which I can provide if you request - where local authority pension funds have released the information I requested through private and public FOI requests on the internet..

As so many other local authorities have already released the information I am requesting for their respective funds (either on their websites or through FOI requests), I think there is a very strong case for Lothian Pension Fund to also disclose similar information for their pension fund. This is especially the case because some of these other funds are much larger than London Pensions Fund Authority, such as the Greater Manchester Pension Fund.

2) In the decision against disclosure of the information I requested from Lothian Pension Fund, I was told that exemption S30(c) and S33(1)(b) were being applied:

• Section 30 (c) prejudice to the effective conduct of public affairs
• Section 33(1)(b) commercial interests

It was stated that:

“While the public may be interested in the details of the investments of the Pension Funds there is a greater public interest in the Pension Funds being able to maximise the capital value and revenue income streams and that nothing is disclosed which could damage either the Pension Fund or the Private Partnership.”

I would argue that it is very unlikely that the full release of the information I requested would “prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs,” under Section 30 (c), because so many other local authorities have already released the information I am requesting for their respective pension funds without affecting the “effective conduct of public affairs.”

According to the Exemption Briefing Series, “each of the exemptions within section 30 of FOISA contains a harm test. Authorities must therefore demonstrate that a particular level of harm is likely to occur from disclosure before each exemption can be applied.”

Does Lothian Pension Fund have any evidence that, as a result of the full disclosure of their investments, the local authority Pension Funds which I have mentioned has resulted in the “prejudice to the effective conduct of public affairs” or that “a particular level of harm occurred from disclosure”?

Also, can Lothian Pension Fund provide evidence that full disclosure of their own investments will prevent the “effective conduct of public affairs” or that “a particular level of harm occurred from disclosure”? If it can't, my understanding is that it cannot rely on the exemption.

According to the Exemption Briefing Series, “The public authority should be able to show how and why disclosure would, or would be likely to, limit its ability to conduct its business effectively. It should be able to explain which aspects of its business would be affected, and in what way, and be able to show why this outcome would result from disclosure of the information requested.”

Similarly, I would argue that any suggested harm or prejudice to commercial interests (Section 33(1)(b) ) from disclosure is insignificant and highly unlikely, especially as so many other Local Authorities have already released the information I have requested for their respective pension funds.

Does Lothian Pension Fund have any evidence that the local authority Pension Funds which I have mentioned have suffered commercial damage or prevented the pension funds ability to “maximise the capital value and revenue income streams” as a result of the full disclosure of their investments? If it can't, my understanding is that it cannot rely on the exemptions.

Also, can Lothian Pension Fund provide evidence that full disclosure of their own investments will actually damage commercial interests and prevent the pension funds ability to “maximise the capital value and revenue income streams”? If it can't, my understanding is that it cannot rely on the exemptions.

Under the relevant exemptions and exceptions, information will normally only be appropriately withheld where it can be demonstrated that release would be likely to cause real and actual harm to a relevant commercial, financial or economic interest.

Is any such harm to commercial interests likely? Mr Justice Munby went some way to define what is meant by “likely” in the case R (on the application of Lord) v Secretary of State for the Home office [2003] EWHC 2073 (Admin). He said the word “likely”:

“connotates a degree of probability where there is a very significant and weighty chance of prejudice to the identified public interests. The degree of risk must be such that there 'may very well' be prejudice to those interests, even if the risk falls short of being more probable than not”

Also, according to the Exemption Briefing Series, “The harm which would, or would be likely to, result from disclosure must be at the level of substantial
prejudice. There is no definition of substantial prejudice in FOISA, but the Commissioner’s view is that in order to claim this exemption, the damage caused by disclosing the information must be of real and demonstrable significance, rather than simply marginal.”

If Greater Manchester Pension Fund, which has holdings of around £11,760,179,071 (at current market value) - a fund which is a few times the market value of Lothian Pension Fund – can openly release on their website the information I am requesting due to the lack of commercial harm as well as the large public interest case in doing so, I think there is a very strong case for Lothian Pension Fund to release similar information for their pension fund as any commercial harm will likely be minimal and trivial and it is very unlikely that the damage caused by disclosure of the information would be “of real and demonstrable significance.”

3) In the original response it was also made clear that the exemption “Section 6 companies which are not wholly publicly owned” was being applied.

Firstly, it is my understanding that at least two jointly-owned companies (Lothian Buses plc (https://www.whatdotheyknow.com/body/loth...) and Scottish Intellectual Asset Management Limited (https://www.whatdotheyknow.com/body/inte...)) consider themselves to be subject to FOISA, and therefore this exemption should not be applied.

Secondly, it is unreasonable and contradictory that this exemption is being applied for a small percentage of the pension funds investments, when almost all of its investments, which have already been released, are “not wholly public owned.” Indeed, that is the nature of many investments – they are held by a multitude of investors.

Thirdly, all the investments by Lothian are “wholly public owned” in the sense that Lothian Pension Fund holds those investments.

Fourthly, similar to the arguments made in points 1) and 2), I have given many example of other Local Authority Pension Funds which have already released the full details of their investments, including in companies and partnerships “which are not wholly publicly owned.” If those Local Authorities were able to fully disclose the information I requested, it is inappropriate for the Section 6 exemption to be applied in this case.

4) I wanted to expand on the public interest case in releasing the information I requested. It is true, as stated in the response to my original request, that the arguments for disclosure include the public interest test.

According to the Exemption Briefing Series: “Each of the exemptions under section 30 is subject to the FOISA public interest test. This means that, even where a public authority considers that an exemption applies, the information should nevertheless be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it. If the two are evenly balanced, the presumption should always be in favour of disclosure.”

I would argue that the public interest clearly lies in disclosing the information I requested.

In Department of Health (DoH) v Information Commissioner (EA/2008/0018) the tribunal quoted advice produced by the Office for Government Commerce (now government Procurement Services) on transparency and public interest factors relating to procurement. It stated:

“There is a strong public interest in showing who public money is being spent with, how much public money is being spent on a particular service or good, and how the supplier arrived at the price that is being charged”

Information that helps the public evaluate and scrutinise government procurement decisions – such as the full investment information of Lothian Pension Fund – is therefore likely to warrant disclosure.

There is a clear and compelling public interest in disclosing information about the spending – and investing - of public money and this is recognised by the Information Commissioner. In Freedom of information Act Awareness Guidance No 5, Commercial Interests, (Version3, 6 March 2008) he states this “will be equally true whether a public authority is purchasing goods or services or responsible for awarding grants to private sector companies.”

The guidance note adds: “Transparency of decisions on how public funds are spent will also generate confidence in the integrity of the procedures involved. Where a public authority is purchasing goods or services there is a public interest in ensuring it gets value for money. This is particularly relevant at a time when there is public debate around the increasing role private companies have in delivering public services.”

As Lothian hires private fund managers to oversee their Pension Fund, the above quote is very relevant.

Moreover, there is also a public interest in disclosing some commercially sensitive information about private companies that is held by public authorities, especially when it would protect the public. The ICO states:

“In the course of its role as a regulator, a public authority may hold information on the quality of products or on the conduct of private companies. There would be strong public interest arguments in allowing access to information which would help protect the public from unsafe products or dubious practices, even though this might involve revealing information that is likely to harm the commercial interests of a company.”

Without the public knowing exactly how the Lothian Pension Fund invests its money, how can the public judge whether “unsafe products” are being invested in or if “dubious practices” are taking place?

Finally, the Ministry of Justice's Freedom of Information exemptions guidance: Section 43 – Commercial interests (14 May 2008) provides general guidance as to when commercial information should be disclosed. Information should be released where disclosure would ensure:

“there is transparency in the accountability of public funds; there is proper scrutiny of government actions in carrying out licensing functions in accordance with published policy; public money is being used effectively and that departments are getting value for money, departments' commercial activities, including the procurement process, are conducted in an open and honest way.”

This is clearly relevant on many levels to Lothian Pension Fund and further warrants the full disclosure of its current investments.

Finally, although some of the above rulings on public interest fall within English FOI law, they are clearly relevant to Scottish FOI law and their consideration could help favour full disclosure of the information I requested.

Yours faithfully,

Harry Corton

P.S. A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/c...