Dear Mr Davis,

FREEDOM OF INFORMATION ACT 2000 (FOIA) - INFORMATION REQUEST

The City of London (CoL) acknowledges receipt of your request for information of 5 March 2014.

Public authorities are required to respond to requests within the statutory timescale of 20 working days beginning from the first working day after they receive a request. The Act does not always require public authorities to disclose the information which they hold.

The FOIA applies to the CoL as a local authority, police authority and port health authority. The CoL is the local and police authority for the “Square Mile”, ie the historic City of London, and not for London as a whole. Please see the following link to a map on the CoL's website, which shows the area covered:
www.cityoflondon.gov.uk/maps/Pages/explo...<http://www.cityoflondon.gov.uk/maps/Page...>.
The CoL does have some functions, including Port Health Authority functions, which extend beyond the City boundary. For further information please see: www.cityoflondon.gov.uk<http://www.cityoflondon.gov.uk>.

Yours sincerely,

Information Officer
Town Clerk’s Department
City of London
Tel: 020-7332 1209
www.cityoflondon.gov.uk<http://www.cityoflondon.gov.uk>

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Dear Ms Davis,

 

FREEDOM OF INFORMATION ACT 2000 (FOIA) - INFORMATION REQUEST

 

Following your request for information of 05 March 2014, and our
acknowledgement of 06 March 2014, the City of London (CoL) responds as
follows.

 

Please note that we have added numbering to your original request to make
our response easier to understand. Please also note that the information
has been supplied for financial years, ie April to March, as this is how
we hold the data. In addition we are unable to provide a breakdown between
Conway and Riney for the changeover in contract of July 2012.

 

The information you have requested forms part of a much larger contract
and the CoL has applied exemptions to some of the requested information.

 

1) Our current contractors are JB Riney and Co Ltd, who were awarded the
Highways Maintenance contract in July 2012, prior to this the CoL’s
Highways contractor was FM Conway. The spend was:

 

2011/12: FM Conway/JB Riney -
£2,351,945.16 (Actual)                           

2012/13: JB Riney - £1,994,739.21 (Actual)

2013/14: JB Riney - £1,755,000.00 (Latest Approved Budget)

 

2) The CoL applies the following exemptions to disclosure of this
information.

 

The information requested is the “cost to have Double Yellow Lines
remarked for 15m straight; if the figure is difference for having DYL
installed for the first time”.

 

(1) FOIA section 41 exemption - Information received in confidence,
disclosure of which would constitute an actionable breach of confidence.

 

The information requested fulfils the requirements outlined in the
guidance published by the Information Commissioner’s Office (ICO) on the
application of this exemption, as follows. The information was explicitly
provided to the CoL in confidence as part of the Local Government
Procurement Procedure. The specific price breakdown is not publicly
available. It supports the competitive position of a commercial enterprise
and was clearly provided by J B Riney in circumstances which would anyway
impart an obligation of confidentiality even if it had not been, as it
was, explicitly provided in confidence. In addition, the information is
current information, and therefore remains confidential.

 

Please note also that a public authority has to consider a disclosure
under the FOIA as a disclosure to the world. We note the Information
Tribunal’s statement that “Disclosure under [the] FOIA is effectively an
unlimited disclosure to the public as a whole” (Information Tribunal
Appeal Decision EA/2006/0011 & 0013), which was also referred to by the
Information Commissioner (Information Commissioner's Decision Notice FS
50294078). Therefore a breach following disclosure would in effect be an
absolute one, ie unrestricted.

 

In conclusion, we consider that it is manifestly the case that this
exemption to disclosure applies to the information and that disclosure
would constitute an actionable breach of confidence. This exemption is an
absolute exemption under the FOIA, which means that it is not subject to
the public interest test.

 

(2) FOIA section 43(2) exemption - Prejudice to the commercial interests
of any person (including the public authority)

 

In accordance with FOIA s43(2), the CoL considers that disclosure of this
pricing breakdown would prejudice the commercial interests of J B Riney
and those of the CoL, and that such prejudice would definitely occur and
would not just be likely to occur. The specific harm which would occur is
to the competitive position of the business; and to the financial position
of the CoL through the harm this would do to the CoL's reputation as a
reliable contractor and therefore its ability to attract tenders from
market leaders in the private sector. The confidence of third parties in
doing business with us would be undermined.

 

The section 43(2) exemption is subject to the public interest test.  The
public interest arguments in favour of disclosure of such information have
been clarified in published guidance. They would be:

 

(i) The desirability of furthering the understanding of, and participation
in, public debate on procurement.

(ii) Facilitating accountability and transparency of public authorities
for their procurement decisions.

(iii) Facilitating accountability and transparency in the spending of
public money.

 

Nevertheless, in the view of the CoL the application of the public
interest test in relation to the s43(2) exemption and s43(1) weighs
against disclosure in this instance. 

 

To publicly disclose the information would prejudice the CoL's financial
interests and those of J B Riney. Building up and sustaining competitive
advantage can take time and effort. This is undermined through disclosure
of key competitor information such as specific pricing information. It
creates a disadvantage to the business. Any undermining of competitiveness
can also undermine the public authority, preventing it from receiving
value for money from public contracts. It may also encourage unscrupulous
undercutting within tender bids to the CoL, which could not be sustained
in practice, possibly resulting in unsatisfactory service provision and
time-wasting disputes. This is not in the public interest. 

 

As under the section 41 exemption, we would also note that a public
authority has to consider a disclosure under the FOIA as a disclosure to
the world. We note the Information Tribunal’s statement that “Disclosure
under [the] FOIA is effectively an unlimited disclosure to the public as a
whole” (Information Tribunal Appeal Decision EA/2006/0011 & 0013), which
was also referred to by the Information Commissioner (Information
Commissioner's Decision Notice FS 50294078). We therefore have to consider
that, were the information disclosed, competitors would have access to the
information. It is impossible to imagine that they would not take
advantage of the disclosure, with consequent harm to the businesses, and
to the reputation of the CoL in dealing fairly with contractors.

 

It is for these reasons that the CoL has applied the section 43(2)
exemption to this information and considers the public interest in
non-disclosure outweighs any public interest in disclosure.

 

We consider that non-disclosure of a contractor’s pricing breakdown is
supported by published Government guidance. Please see part 4, item 9
('Price breakdown'), and part 5, item 7 (‘Price breakdown’), of Annex A of
FOI (Civil Procurement) Policy and Guidance, which can be found on the
following Cabinet Office Policy and Standards Framework – best practice
guidance webpage, at:

[1]http://www.cabinetoffice.gov.uk/resource...

 

Nevertheless, we hope that this response is of assistance.

 

If you have any queries or concerns, please contact me.

 

If you wish to make a complaint about the way the CoL has managed your
request under the FOIA, please make your complaint in writing to our
Complaints Officer at [2][email address]. For a link to the
CoL’s FOI complaints procedure, please visit the following page:
[3]www.cityoflondon.gov.uk/Feedback, at the end of which is located the
FOI complaints procedure. If, having used the CoL’s FOI Complaints
Procedure, you are still dissatisfied, you may request the Information
Commissioner to investigate. The Information Commissioner is a Crown
appointment, responsible for monitoring compliance with the FOIA. Please
contact: Information Commissioner, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF. Telephone: (01625) 545700. Website: [4]www.ico.org.uk.

 

Please note that the Act applies to the CoL as a local authority, police
authority and port health authority.

 

CoL holds the copyright in this communication. The supply of it does not
give you a right to re-use it in a way that would infringe that copyright,
for example, by making copies, publishing and issuing copies to the public
or to any other person. Brief extracts of any of the material may be
reproduced under the fair dealing provisions of the Copyright, Designs and
Patents Act 1988 (sections 29 and 30) for the purposes of research for
non-commercial purposes, private study, criticism, review and news
reporting, subject to an acknowledgement of the copyright owner.

 

Yours sincerely,

 

 

Performance & Standards Officer

Department of the Built Environment

Phone      020 7606 3030

[5]www.cityoflondon.gov.uk

 

 

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