Information regarding the monitoring and sanctions applied under the Sheffield Council's 'Streets Ahead' PFI contract.

The request was refused by Sheffield City Council.

Dear Sheffield City Council,
1. On how many occasions have Amey failed to meet Service Requirement 6.51 of the Streets Ahead contract?

2. Please provide a list specifying the ‘Central Asset ID’ or location of all trees removed pursuant to Service Requirement 6.38 where the stump was not removed or ground out within 10 days of the tree’s removal.

3a. Has Amey recorded and reported all occasions when a tree has been removed pursuant of 6.38 of the Streets Ahead contract?

3b. Is Amey required to record and report all trees removed pursuant to Service Requirement 6.38?

4a. Has Amey separately record and reported all occasions when a tree stump has been removed pursuant to Service Standard 6.51 ?

4b. Is Amey required to separately record and report all tree stump removal or grinding pursuant to Service Requirement 6.38?

5. Have any payment adjustments, penalties or warnings been triggered by Amey’s failure to meet the requirements of 6.51?

Yours faithfully,

Russell Johnson

FOI, Sheffield City Council

Dear Russell Johnson,

 

Thank you for your recent request for information relating to Streets
Ahead Contract which we received on 25/10/19.

 

This has been logged as a Freedom of Information Request, and will be
dealt with under the Freedom of Information Act.  The reference number for
your request can be found above.

 

The Freedom of Information Act states that we must respond to you within
20 working days, therefore, you should expect to hear a response from us
by 22/11/19.

 

In the meantime, if you have any queries please, contact us at the email
address below.

 

Thank you.

 

Yours sincerely,

 

Sheffield City Council

PO Box 1283

Sheffield, S1 1UJ

Email: [1][Sheffield City Council request email]

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FOI, Sheffield City Council

Dear Russell Johnson,

 

Thank you for your recent request for information relating to Streets
Ahead Contract which we received on 25/10/19.

 

Please find below, Sheffield City Council’s response to your request:

 

1. On how many occasions have Amey failed to meet Service Requirement 6.51
of the Streets Ahead contract?

 

This information is exempt from disclosure under Regulation 12(5)(e) of
the Environmental Information Regulations 2004. Please see the refusal
notice in the table below for an explanation.
2. Please provide a list specifying the ‘Central Asset ID’ or location of
all trees removed pursuant to Service Requirement 6.38 where the stump was
not removed or ground out within 10 days of the tree’s removal.
This data is not held by Sheffield City Council.

 

3a. Has Amey recorded and reported all occasions when a tree has been
removed pursuant of 6.38 of the Streets Ahead contract?

 

No. Under the Streets Ahead Contract, Amey are required to seek approval
for the replacement of Highway Trees either through the Annual Tree
Management Programme or the Authority Approval process. These requests are
recorded. Amey do not report when the trees are removed but the removal
will be recorded in their asset inventory.

 

3b. Is Amey required to record and report all trees removed pursuant to
Service Requirement 6.38?

 

Please refer to the response to Question 3a above.

 

4a. Has Amey separately record and reported all occasions when a tree
stump has been removed pursuant to Service Standard 6.51 ?

 

No

 

4b. Is Amey required to separately record and report all tree stump
removal or grinding pursuant to Service Requirement 6.38?

 

No

 

5. Have any payment adjustments, penalties or warnings been triggered by
Amey’s failure to meet the requirements of 6.51?

 

This information is exempt from disclosure under Regulation 12(5)(e) of
the Environmental Information Regulations 2004. Please see the refusal
notice in the table below for an explanation.

 

Exception applied: Why does it apply?

Regulation 12(5)(e) of the The information requested in
Environmental Information questions 1 and 5 is commercially
Regulations 2004: the confidential information. It would
confidentiality of commercial or damage Amey’s economic interests if
industrial information where such we were to release information about
confidentiality is provided by law the number of times they have failed
to protect a legitimate economic to meet the Service Requirement or
interest have been warned or issued with
payment adjustments.

This could damage Amey’s reputation
and could mean that other
organisations would be deterred from
entering into contracts with Amey or
that Amey would be less likely to win
bids for other contracts in the
future.
Regulation 12(1)(b) of the Environmental Information Regulations 2004
requires us to carry out a public interest test where an exception to
disclosure applies under Regulation 12(4) or Regulation 12(5). More
information on Public Interest Tests can be found on the Information
Commissioner’s Office website.
Factors in favour of disclosing the Factors in favour of refusing to
information: disclose the information:
·         Disclosure supports the ·         Disclosure could result in
transparency agenda, making it clear legal action for breach of
how local authorities deliver confidentiality. Information about
services, spend money and make individual performance failures and
decisions penalties received is information
which is confidential in nature as it
·         Public authorities are is not already in the public domain
accountable to the public for the and nor is it trivial in nature.
decisions they make and the money
they spend. It is in the public Performance information is shared
interest for members of the public between Amey and the Council in
to know how well Amey is delivering circumstances which give rise to an
against its contractual obligations obligation of confidence as it is
and whether the Council is obtaining shared as part of the contract
good value for money for its monitoring process. Amey would not
contract with Amey expect that information about their
performance shared specifically for
the purposes of contract monitoring
would be made public. If this
information were to be disclosed, it
could result in detriment to Amey as
it could damage their reputation.

Therefore, this information is
confidential in nature and Amey could
take legal action if it were
disclosed. It would not be in the
public interest for the Council to
spend time and public money in
defending a claim for breach of
confidence. Any potential legal
action would also damage the
relationship between the Council and
one of its contractors.

·         While it may be in the
public interest to disclose
information about Amey’s performance
against its contractual obligations,
there are already mechanisms in place
in the contract which allow the
Council to review Amey’s performance
and to deal with and address any
performance issues which arise.

o It would deter companies from
entering into agreements with the
Council if they suspected that
the Council may disclose
information about any financial
penalties which they have paid as
part of the contract
o Releasing information about
Amey’s performance may have an
impact on the company’s chances
of successfully bidding for other
contracts in the future
Public Interest Decision:

On balance, we believe it is not the public interest to disclose this
information as disclosure would damage the relationship between the
Council and Amey and could lead to the Council facing legal action.

 

If you have any queries about this response, please do not hesitate to
contact us.

 

If you are unhappy with the response you have received in relation to your
request, you are entitled to have this reviewed.  You can ask for an
internal review by either writing to the above address or by emailing
[1][Sheffield City Council request email].  Internal review requests should be submitted
within 40 working days from the date of this response.

 

If you remain dissatisfied with the outcome of your internal review, you
can contact the Information Commissioners Office. The Information
Commissioner can be contacted at: The Information Commissioner's Office,
Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF, telephone 0303
123 1113, or for further details see their website [2]www.ico.org.uk

 

Kind Regards,

 

Sheffield City Council

PO Box 1283

Sheffield, S1 1UJ

Email: [3][Sheffield City Council request email]

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Dear Sheffield City Council ,
"Thank you for your response to my FOI request.
This is not a request for an internal review.
Unfortunately I find your response somewhat confusing and indeed incomprehensible.This is a request for clarification of your initial response which I quote below verbatim for your reference:

"Exception applied: Why does it apply?
Regulation 12(5)(e) of the The information requested in
Environmental Information questions 1 and 5 is commercially
Regulations 2004: the confidential information. It would
confidentiality of commercial or damage Amey’s economic interests if
industrial information where such we were to release information about
confidentiality is provided by law the number of times they have failed
to protect a legitimate economic to meet the Service Requirement or
interest have been warned or issued with
payment adjustments.
This could damage Amey’s reputation
and could mean that other
organisations would be deterred from
entering into contracts with Amey or
that Amey would be less likely to win
bids for other contracts in the
future.
Regulation 12(1)(b) of the Environmental Information Regulations 2004
requires us to carry out a public interest test where an exception to
disclosure applies under Regulation 12(4) or Regulation 12(5). More
information on Public Interest Tests can be found on the Information
Commissioner’s Office website.
Factors in favour of disclosing the Factors in favour of refusing to
information: disclose the information:
· Disclosure supports the · Disclosure could result in
transparency agenda, making it clear legal action for breach of
how local authorities deliver confidentiality. Information about
services, spend money and make individual performance failures and
decisions penalties received is information
which is confidential in nature as it
· Public authorities are is not already in the public domain
accountable to the public for the and nor is it trivial in nature.
decisions they make and the money
they spend. It is in the public Performance information is shared
interest for members of the public between Amey and the Council in
to know how well Amey is delivering circumstances which give rise to an
against its contractual obligations obligation of confidence as it is
and whether the Council is obtaining shared as part of the contract
good value for money for its monitoring process. Amey would not
contract with Amey expect that information about their
performance shared specifically for
the purposes of contract monitoring
would be made public. If this
information were to be disclosed, it
could result in detriment to Amey as
it could damage their reputation.
Therefore, this information is
confidential in nature and Amey could
take legal action if it were
disclosed. It would not be in the
public interest for the Council to
spend time and public money in
defending a claim for breach of
confidence. Any potential legal
action would also damage the
relationship between the Council and
one of its contractors.
· While it may be in the
public interest to disclose
information about Amey’s performance
against its contractual obligations,
there are already mechanisms in place
in the contract which allow the
Council to review Amey’s performance
and to deal with and address any
performance issues which arise.
o It would deter companies from
entering into agreements with the
Council if they suspected that
the Council may disclose
information about any financial
penalties which they have paid as
part of the contract
o Releasing information about
Amey’s performance may have an
impact on the company’s chances
of successfully bidding for other
contracts in the future
Public Interest Decision:
On balance, we believe it is not the public interest to disclose this
information as disclosure would damage the relationship between the
Council and Amey and could lead to the Council facing legal action."

I would be grateful if you could provide a coherent response especially regarding and focusing upon your application of the 'Public Interest Test'.
Ideally I would also appreciate an explanation including why you have chosen to invoke EIR rather than FOIA 2000.
Many thanks in anticipation of you immediate response."

Yours sincerely,

Russell Johnson

FOI, Sheffield City Council

Dear Russell Johnson,

 

We note that you have specifically asked us not to carry out an internal
review at this stage. However, the Information Commissioner’s Office has
produced a Code of Practice under Regulation 16 of the Environmental
Information Regulations 2004 which provides guidance to public bodies on
request handling. Paragraph 60 of the Code of Practice states:

 

"Any written reply from the applicant (including one transmitted
electronically) expressing dissatisfaction with an authority's response to
a valid request for information should be treated as a complaint… These
communications should be handled in accordance with the authority’s review
procedure pursuant to Regulation 11, even if the applicant does not state
his or her desire for the authority to review their decision or the
handling of their application. "

 

As your email expressed dissatisfaction with the response the Council
provided, we are going to deal with this under the internal review
procedure.

 

Conducting an internal review creates an obligation for us to respond
within a set time limit and is the proper process to follow under EIR.
Should you remain dissatisfied with our response following the internal
review, you have the right to contact the Information Commissioner’s
Office who will investigate further.

 

We are sorry to hear that you are not happy with your response.

 

This has now been logged and will be carried out by a member of the team

 

You should expect to hear a response from us by 23/12/2019.

 

In the meantime, if you have any queries please, contact us at the email
address below.

 

Thank you.

 

Yours sincerely,

 

Sheffield City Council

PO Box 1283

Sheffield, S1 1UJ

Email: [1][Sheffield City Council request email]

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Dear FOI,
Further to your decision to invoke an internal review.

Please ensure that the following is thoroughly addressed and communicated when reviewing your initial response to me.

Regarding the engagement of Regulation 12(5)(e), has the exemption been properly invoked in the first instance and subsequently whether the necessary Public Interest Test has been rigorously and properly considered and applied as specified in the following legislation:

"12.—(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—
(a)an exception to disclosure applies under paragraphs (4) or (5); and
(b)in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.
(2) A public authority shall apply a presumption in favour of disclosure.
(3) To the extent that the information requested includes personal data of which the applicant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with regulation 13.
(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—
(a)it does not hold that information when an applicant’s request is received;
(b)the request for information is manifestly unreasonable;
(c)the request for information is formulated in too general a manner and the public authority has complied with regulation 9;
(d)the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or
(e)the request involves the disclosure of internal communications.
(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—
(a)international relations, defence, national security or public safety;
(b)the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;
(c)intellectual property rights;
(d)the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;
(e)the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;
(f)the interests of the person who provided the information where that person—
(i)was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;
(ii)did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and
(iii)has not consented to its disclosure; or
(g)the protection of the environment to which the information relates"

I find it troubling that Sheffield City Council do not have access to the information I have requested which is material and crucial to the rigorous monitoring of contractual obligations and potential implementation of penalties for failure to meet service requirements.
Please ensure and review whether clause 90.2 (including sub-clauses) of the Streetsahead contract has been properly and fully engaged and all applicable data held by Amey has been requested by SCC and supplied.

Yours sincerely,

Russell Johnson

FOI, Sheffield City Council

1 Attachment

Dear Mr Johnson

Further to your request for clarification in regards to the Council's previous response to your Freedom of Information request (FOI 1130), please find attached a copy of the outcome of the internal review.

I hope this provides you with the required clarification, however if you are dissatisfied with the outcome of your internal review, you are entitled to contact the Information Commissioner’s Office and they will consider whether your complaint is eligible for further review. The Information Commissioner’s details and guidance is available on the website at www.ico.org.uk.

Kind regards

Tim Sharp
Information Management Officer
Information Management Team
Sheffield City Council
Floor 8, North Wing
Moorfoot Building
Sheffield
S1 4PL
Tel: 0114 273 6388

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