Ernst and Young Reports for Gloucestershire County Council re: Javelin Park

The request was partially successful.

Dear Gloucestershire County Council,

Please provide:

(1) A list of all payments to Ernst and Young for consultancy work in relation to waste procurement, or the Javelin Park Incinerator contract;

(2) A list of reports produced by Ernst and Young for the council in relation to the Javelin Park Incinerator contract;

(3) A copy of the report produced by Ernst and Young for Cabinet on 11th November 2015, as referenced in the recent ruling of the Information Tribunal (Appeal number EA/2015/0254-6; paragraph 27).

Please also consider this request in the context of the Environment Information Regulations (EIR), and the recent ruling of the Information Tribunal which considered the Javelin Park Contract and Annexes as a whole, and ruled there was a substantial public interest in understanding the financial arrangements around the contract. The ruling, and recent responses the council questions, indicate that the Ernst and Young calculations play a significant role in judging both the truthfulness of information presented to the council and the public, and in evaluating the justifications for the UBB contract. As such, this document appears to form a part of the same whole as the contract, and to be of overwhelming public interest.

Yours faithfully,

Tim Davies

Gloucestershire CC, Gloucestershire County Council

Information request
Our reference: 5367968

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Dear ‎Mr Davies‏
 
Request for Information (Reference: 5367968)
 
Thank you for your request for information, received on 21 March 2017.
 
Request summary:
(1) A list of all payments to Ernst and Young for consultancy work in
relation to waste procurement, or the Javelin Park Incinerator contract;
(2) A list of reports produced by Ernst and Young for the council in
relation to the Javelin Park Incinerator contract;
(3) A copy of the report produced by Ernst and Young for Cabinet on 11th
November 2015, as referenced in the recent ruling of the Information
Tribunal (Appeal number EA/2015/0254-6; paragraph 27).
Please also consider this request in the context of the Environment
Information Regulations (EIR), and the recent ruling of the Information
Tribunal which considered the Javelin Park Contract and Annexes as a
whole, and ruled there was a substantial public interest in understanding
the financial arrangements around the contract. The ruling, and recent
responses the council questions, indicate that the Ernst and Young
calculations play a significant role in judging both the truthfulness of
information presented to the council and the public, and in evaluating the
justifications for the UBB contract. As such, this document appears to
form a part of the same whole as the contract, and to be of overwhelming
public interest.
 
We aim to respond to your request no later than midnight on 20 April
2017 (the statutory timescale of 20 working days, starting on the working
day following receipt of your request). We may need to contact you if the
request needs to be clarified; this is to ensure we provide you with the
information you require.
 
If the information you have requested is held by another public authority,
we will inform you of this so that you can contact them directly.
 
Gloucestershire County Council is committed to the principles of
information disclosure and will, wherever possible, provide all
information requested. However, some information you have requested may
not be provided to you; this will only be information that can be withheld
by law, and, in most cases, the reason will be explained to you when we
send out any information that can be released. We will also inform you as
soon as possible if we do not hold the information you have requested.
 
Our response to your request may be published in our disclosure log, with
your personal details removed. Our new disclosure log can be found on our
website at: [1]www.gloucestershire.gov.uk/foi.  In future, you may find
that the answer to your questions about the Council has already been
published.
 
Yours sincerely
Neil Downing
Request Co-ordinator
Information Management Service

01452 324000

References

Visible links
1. http://www.gloucestershire.gov.uk/foi

Gloucestershire CC, Gloucestershire County Council

1 Attachment

Information request
Our reference: 5367968

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Dear Mr Davies,

Please find attached our intial response to your request for information.
Yours sincerely
Teresa Wilmshurst

01452 324000

Gloucestershire CC, Gloucestershire County Council

Information request
Our reference: 5367968

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Dear Mr Davies
 

I am writing to you with regards to your request for information. We are
very sorry but due to the complexity of the case we're currently unable to
provide a response and will be back in touch.

Yours sincerely
Gareth Heward
Information Requests Officer
Information Management Service

01452 324000

 
NOTE: Please do not edit the subject line when replying to this email.

Dear Gloucestershire CC,

Thank you for your response on 19th May.

Given the importance of a timely response on this matter, I am not satisfied with the continued delay, and so have raised by concern directly with the Information Commissioner via their concerns process.

I would urge you to complete your public interest test promptly.

Yours sincerely,

Tim Davies

Gloucestershire CC, Gloucestershire County Council

2 Attachments

Information request
Our reference: 5367968

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Dear Mr Davies
 
Thank you for your request for information received on 21 March 2017.
 
Please find attached our response to your request.
 
Yours sincerely

Information Management Service

01452 324000

 
NOTE: Please do not edit the subject line when replying to this email.

Dear Gloucestershire County Council,

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

I am writing to request an internal review of Gloucestershire County Council's handling of my FOI request 'Ernst and Young Reports for Gloucestershire County Council re: Javelin Park'. I am separately sending a copy for the Information Commissioner's Case Officer to keep on file in this case.

The requested document was provided with heavy redactions.

I believe the decision to withhold parts of the document should be reviewed on two grounds:

**Firstly**, for all those redactions which cover figures which are the revised 2015 version of figures included in the 2013 contract, there is a clear and unequivocal ruling from the Information Tribunal (ruling EA/2015/0254-6 ) that this information is in the public interest, and should be supplied. Applying these redactions is directly against the spirit of that ruling, and the justifications offered do not appear to respect the public interest test balance struck by both the Information Commissioner and the Information Tribunal with respect to tonnages, fees and other information that is essential for citizens to make informed judgements about the Council's case for a major investment project, and to evaluate the claims made by officials and elected representatives with respect to the impact of the project on public spending.

Just as the 2013 contract related to a concluded negotiation. This document relates to a concluded negotiation, and so it's disclosure does not prejudice that ongoing negotiation. The claim that disclosure would reveal the Council's commercial strategy and appetite for risk does not hold up on two grounds. Firstly, the previous disclosures ordered by the Information Tribunal cover information that already substantially reveal the commercial strategy and appetite for risk. Secondly, if the appetite for risk of the council was substantially changed in 2015, there is a significant public interest in understanding this, in order to have effective public scrutiny of a decision that has substantial financial and environmental consequences for all local citizens.

In addition to the figures in §5.5, I draw particular attention to the figures relating to the revenue from electricity generation case, and the ruling of the Tribunal in paragraph 216, relating the the importance of disclosure of information relating to this.

**Secondly**, for those redactions which provide additional information not covered by the 2013 Contract disclosures, these appear material to a full public understanding of the **current** case for the continuation of this project (which remains controversial and was recently the subject of a full Council vote to call for a halt to work). In particular, understanding the claimed upsides of the project redacted in §8, and the assumptions discussed in §6.1.1 and the basis on which calculations of cancellation costs were made in the Appendix are all material to the ability of citizens (and indeed Councillors) to make informed judgements about the potential risk of construction delays.

I will additionally respond to your reasons given against disclosure below:

REASON: There is a public interest in preventing other companies in the waste management business from having access to the figures. Not only would this be contrary to the general public interest in maintaining commercial confidences, it would provide competitors with an unfair commercial advantage and would discourage commercial organisations from sharing information with public authorities in the future.

RESPONSE: There is no general public interest in maintaining commercial confidence. There must be proof of harm to the commercial interests of the council or the public body. Without such proof, this exception cannot be invoked.

The Information Tribunal ruling notes that commercial providers are well aware that information they share with the public sector is subject to the FOI Act and EIR, and that there is no evidence this deters commercial organisations engaging with the public sector.

Only information agreed in advance to be subject to commercial confidentiality can be covered by such an exemption, and the Tribunal ruling noted that substantial proportions of the information redacted here were not subject to such an agreement.

REASON: Disclosure of the particular information under consideration in this case would not make any significant contribution to public knowledge on those issues, particularly in light of the information that had already been put into the public domain; the incremental contribution to public knowledge represented by the redacted information is negligible.

RESPONSE: This if frankly ridiculous. The documents released discuss 'substantial increases' in costs and the redactions success changes in the agreed banding of waste, which has implications for recycling locally.

The basis on which claims about cancellation costs has been cancelled is of substantial public interest in holding the council to account.

The substance of these documents is directly related to those ruled on by the Information Tribunal, which found substantial public interest.

REASON: Release would not inform the public of anything relevant to the reasons why the EfW facility was selected (matters that have, in any event, already been aired).

RESPONSE: The request did not relate to the reasons for selection of the EfW facility. As such, this reason has no bearing on a public interest test.

Furthermore, that general matters have already been aired is not grounds for refusing the request for a specific document if the substantive content of that document is not already in the public domain.

REASON: Public authorities need legitimate space to negotiate and to thoroughly discuss various options in relation to financially and environmentally significant proposals such as those outlined in this case.

RESPONSE: The Environmental Information Regulations are specifically in place because of the public right to know information about major environmental decision making.

As this request was considered under the EIRs, this would appear to be an attempt to invoke regulation 12(4)(e) relating to **internal communications**. Notwithstanding the fact that an external report would not fall within the scope of this, the ICO guidance at https://ico.org.uk/media/for-organisatio... states

"§50: The need for a safe space will be strongest when the issue is still live. Once a public authority has made a decision, a safe space for deliberation will no longer be required and the argument will carry little weight."

as such, this does not appear to apply.

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

Yours faithfully,

Tim Davies

Gloucestershire CC, Gloucestershire County Council

Information request
Our reference: 5367968

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Dear Mr Davies
 
Thank you for your request for a review received on 4 July 2017. I am
sorry that you are dissatisfied with our attempts to handle your request
under the Freedom of Information Act 2000 and Environmental Information
Regulations 2004.
 
I can confirm that we are considering your concerns and we will aim to
respond to your request no later than midnight on 1 August 2017.
 
Yours sincerely
Neil Downing
Requests Support Officer
Information Management Service

01452 324000

 
NOTE: Please do not edit the subject line when replying to this email.

Gloucestershire CC, Gloucestershire County Council

Information request
Our reference: 5367968

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Dear Mr Davies,

 

I am writing to inform you that we are continuing work on your request for
an internal review (Ernst and Young report) and to advise that the Council
needs to extend the time limit by a further 20 working days. This is to
permit the reconsideration of the public interest test.  This is in line
with our complaints procedure and means that the revised deadline for a
response is 30 August.

I would like to apologise for the delay in responding and thank you for
your patience.

 

Yours sincerely,

Information Management Team

Gloucestershire County Council

01452 324000

 
NOTE: Please do not edit the subject line when replying to this email.

Dear Gloucestershire CC,

It is extremely disappointing and concerning that there have been delays at every single stage of this request, and in every other request that has related to details of the Javelin Park project.

I will be raising this concern with the case officer I have been in correspondence with at the Information Commissioners Office.

I look forward to your response on the review no later than the 30th August, and I would hope, much sooner.

Yours sincerely,

Tim Davies

Gloucestershire CC, Gloucestershire County Council

2 Attachments

Information request
Our reference: 5367968

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Dear Mr Davies,
 
Please find attached the response for your internal review relating to the
Ernst and Young report.
Information Management Service

01452 324000

Dear Gloucestershire CC,

Thank you for sending the outcome of your review.

Please could you re-send the redacted copy of the document with the redactions clearly indicated in black at the earliest opportunity.

In the attachment you have sent these have been changed to white, the same colour as the background, which makes it very difficult to clearly cross-reference your list of redactions with places in the document where redactions have been carried out.

Yours sincerely,

Tim Davies

Gloucestershire CC, Gloucestershire County Council

1 Attachment

Dear Mr Davies,
 
Please find attached a copy of the report with redactions marked in black.
 
Yours sincerely,
Information Management Service

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Dear Gloucestershire CC,
Thank you for sending the outcome of your review.
Please could you re-send the redacted copy of the document with the
redactions clearly indicated in black at the earliest opportunity.
In the attachment you have sent these have been changed to white, the same
colour as the background, which makes it very difficult to clearly
cross-reference your list of redactions with places in the document where
redactions have been carried out.
Yours sincerely,
Tim Davies

Tim Davies left an annotation ()

It's been drawn to my attention that under the Environment Information Regulations (EIRs) the authority has no right to extend the duration for carrying out a Public Interest test:

https://ico.org.uk/media/for-organisatio...

"§8 The EIR permit an extension to the time for compliance for Regulations 5(2), 6(2)(a) and 14(2), from 20 to 40 working days, where the authority believes that the complexity and volume of the request would make it impractical to comply or reach a decision about whether to refuse the request, within 20 working days.

§9. Unlike the Freedom of Information Act, there is no provision to extend the time for compliance to further consider the public interest test, nor do the EIR make any provision for variations to the time limits for certain categories of information or types of organisation."

As such, we should not have allowed the authority to delay the request beyond 20th April.

Will take note of this for any future requests.

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