Dear Mr Coombs
Thank you for your email. We will supply the information requested within
20 working days.
Kind regards
Mark Sturgeon
Chair
The Buckinghamshire Grammar Schools

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Dear Mr Coombs

Further to your email of 24 October 2020. I am writing to inform you of
the extent to which we can comply with your request. You are making this
request pursuant to the Freedom of Information Act 2000 (FoIA).

You have requested the following information:

1. The current contract between TBGS and GLA for the provision of
admissions tests.
2. The previous contract between TBGS and CEM for the provision of
admissions tests.

We have attached the following:

1.       A copy of contract with GL Assessment which was signed on 27
March 2017.

2.       A copy of the contract with CEM signed November 2013.

3.       a) Contract extension letter with CEM and b) Years 4 and 5
extension costs (June 2014).

4.       CEM 2^nd extension agreement dated 23 August 2017.

You will note that certain information has been redacted. The FoIA has
certain exemptions to the right to have information disclosed.  As such,
the following has been redacted in accordance with the corresponding
exemptions:

GL assessment agreement:

 1. Figure in clause 3.2.1 - commercial interests (s43)
 2. Schedule 2 (Charges) - commercial interests (s43)
 3. Schedule 5 (Tender response) - commercial interests (s43) and
confidentiality (s41)

CEM agreements:

 4. 2013 agreement: Schedule 2 – Payment Schedule – commercial interests
(s43)
 5. 2014 extension costs – commercial interests (s43)

We have also redacted any personal data of a data subject in accordance
with the Data Protection Act 2018.

We have provided the following rationale for redaction of the above
information on the following exemption grounds:

Section 43 (2) - Commercial Interests

GL Assessment Ltd and CEM are two of a small number of suppliers of 11+
tests in the UK. The commercial interests exemption applies if a
disclosure would, or would be likely to, prejudice the commercial
interests of any person or entity. A commercial interest relates to a
person’s ability to participate competitively in a commercial activity,
i.e. the purchase and sale of goods or services.

It is our view that the disclosure of the requested information would
prejudice the commercial interests of both GL Assessment and CEM because:

• this information is highly confidential. This information would likely
give competitors a commercial advantage if the commercial details of
the contracts i.e. costings and the tender response were to enter the
public domain.
• the release of this information could harm the ability of both CEM and
GL Assessment to participate competitively if their other customers
(both current and prospective) were given access to this information.
This is because it would hinder both organisation’s ability to
negotiate, particularly in regards to costs and services levels. This
too would create an unfair competitive advantage for competitors.

Section 43 (2) (Commercial Interests) is a qualified exemption. We have
conducted a public interest test and have concluded that while disclosing
the information would provide transparency, the public interest in
withholding the information outweighs the public interest in disclosing
it. This is because:

• it would not be in the public interest to distort the market by
prejudicing the commercial interests of two of the test providers,
especially given there are a limited number of 11+ test providers in
the UK;
• disclosure would undermine the relationship of trust between TBGS and
its suppliers. GL Assessment and CEM are two of a very limited number
of 11+ test providers so disclosure of commercial information would
adversely affect our relationship with both suppliers and hinder our
ability to use either of these providers in the future. This would not
be in the public interest as it would lead to TBGS having a
significantly smaller selection of providers from which to judge cost,
value for money and credibility.

It is also worth noting that although the public interest is best served
by promoting openness by facilitating the accountability and transparency
in the spending of public money, neither CEM nor GL Assessment Ltd is in
receipt of or using public money for the purposes of developing and
delivering the 11+ test to schools. These activities are funded solely
through the sale of the test to schools.

We have assessed and concluded therefore that the above rationale
justifies our decision that maintaining the exemption outweighs the public
interest in disclosing that information.

In respect of the redaction of Schedule 5 (Tender Response) in the current
agreement TBGS has with GL Assessment, we believe the exemption of
‘information provided in confidence’ (section 41 of the Freedom of
Information Act 2000 (FoIA)) also applies.

Section 41 - Confidentiality

Section 41 of the FoIA states that information is exempt information for
the purposes of required disclosure if:

a)       it was obtained by the public authority from any other person
(including another public authority); and

b)      the disclosure of the information to the public by the public
authority holding it would constitute a breach of confidence actionable by
that or any other person.

In order for Section 41 to be engaged, the following criteria must be
fulfilled:

a)       the authority must have obtained the information from another
person;

b)      its disclosure must constitute a breach of confidence;

c)       a legal person must be able to bring an action for the breach of
confidence to court; and

d)      that court action must be likely to succeed.

As part of GL Assessment’s tender submission, GL Assessment provided TBGS
with a tender response document, which is detailed within Schedule 5 of
the contract. GL Assessment made it clear that this information is highly
confidential and commercially sensitive. The tender response was submitted
subject to obligations of confidence.

The information requested has the necessary quality of confidence in that
it is ‘more than trivial and is not otherwise accessible’ (para. 29 of the
ICO guidance on Section 41). The information is worthy of protection as it
is commercially sensitive information that pertains to GL Assessment’s
business, the construction of the 11+ test, intellectual property and
other confidential information which would be advantageous to a competitor
of GL Assessment.

The remaining criteria set out in section 41 of the FoIA is that a legal
person must be able to bring an action for the breach of confidence to
court; and that court action must be likely to succeed.

GL Assessment is a legal person capable of bringing an action against
TBGS. We believe that there would be reasonable grounds for GL Assessment
to bring a claim against TBGS under English law (and seek damages for its
loss).

Section 41 is an absolute exemption, so there is no public interest test
to be carried out under FoIA. However, we have considered whether we would
have a public interest defence to a claim made by GL Assessment that would
mean that GL Assessment’s claim would not, or would be unlikely to,
succeed. 

We have arrived at the conclusion that the public interest defence is
likely to fail (and therefore GL Assessment’s court action is likely to
succeed) because of the wider public interest in preserving the principle
of confidentiality, namely disclosure would undermine the relationship of
trust between us and GL Assessment. As stated above, GL Assessment is one
of a very limited number of 11+ test providers and therefore this could
adversely affect our ability to select this provider in the future. This
would have an adverse effect of limiting our choice of providers which is
not in the public interest as we would have a significantly smaller
selection of providers from which to judge cost, value for money and
credibility.

We have assessed and concluded that the above rationale justifies our
decision that maintaining the exemption outweighs the public interest in
disclosing that information.

You have the right to lodge a complaint with the UK supervisory body, the
Information Commissioner’s Office (the ICO) here:-
[1]https://ico.org.uk/make-a-complaint/

Yours sincerely

Mark Sturgeon
Chair
The Buckinghamshire Grammar Schools

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Dear Mr Coombs
Thank you for your email. We will respond as soon as we can.
Kind regards
Mark Sturgeon
Chair
The Buckinghamshire Grammar Schools

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Dear Mr Coombs

Further to your emails of 29 November and 13 December David Hudson the
Vice Chair has carried out the Internal Review requested. Mr Hudson’s
findings are reproduced below:

I confirm that, as reviewer for this request from Mr Coombs, I was not
involved in the original

correspondence; I am also of the same level of seniority as the original
decision maker and

therefore suitably placed to have reviewed in detail Mr Coomb’s request
and the response provided

by TBGS.

Mr Coombs’ initial request falls into two parts:

a)      “It is not clear from the authority’s response which parts of my
request were withheld under s.41 and which under s.43(2) so the response
as it stands does not comply with the authority’s obligations under
s.17(1)(c) to clearly explain why the exemption applies”

b)      “...my request for the decision to be reviewed is confined to the
authority’s decision to not disclose the overall values of the contracts
with CEM and GLA”

He subsequently added to this request on 13th December asking TBGS to
release Schedule 5 without any redactions, saying that, “S.41 is only
correctly engaged if the information is both obtained from another person
AND disclosure would constitute a breach of confidence actionable by that
or any other person. Both clauses are necessary for the exemption to
apply.

The contents of the contract between TBGS and GLA do not constitute
information obtained by TBGS from another person because the terms of the
contract would have been mutually agreed by the parties, rather than
provided by GLA.”

I will treat this further request as part c).

To take each part in order:

a)       Although this is not strictly part of Mr Coombs’ review request,
I disagree with this part of Mr Coombs’ request.  It appears very clear to
me that TBGS has identified the two contracts and where either s41 or s43
restrictions are relevant this has been pointed out in TBGS’s response of
26th November 2020

b)      I note that Mr Coombs’ review request sought release of the
current and previous contracts with GLA and CEM respectively.  TBGS has
released both contracts (in redacted form) as requested. I also note,
however, that neither contract provides an overall value, something which
Mr Coombs later says he would like to have released.  This later request
was not part of his original FOI request and I therefore find that TBGS
responded appropriately

c)       I believe that s41 has been applied appropriately.  The
information in this case was provided by GLA and can thus be properly
considered as having been obtained from another party; whether TBGS agreed
with the terms is not the point.

 Conclusion

Overall, I conclude that TBGS has responded appropriately to Mr Coombs’
FOI request. Mr Coombs had expected the contracts to include releasable
contract values. That is not the case however, it would seem reasonable to
me and in the public interest for TBGS to release the total value of the
contract in each case. I believe the figures are as follows: for CEM the
total contract value is £778,200; the contract value for GL Assessment Ltd
is already in the public domain and is £1,167,000.

I can confirm that the figures quoted in Mr Hudson’s comments are correct,
i.e. the total value in the contract for CEM is £778.2k and that for GL
Assessment is £1.167k.

You have a right to lodge a complaint with the UK supervisory body, the
Information Commissioner’s Office (the ICO) here:-
[1]https://ico.org.uk/make-a-complaint/

Yours sincerely

Mark Sturgeon
Chair
The Buckinghamshire Grammar Schools

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