LOBO Prepayment Report (Arlingclose Limited)

Waiting for an internal review by Wirral Metropolitan Borough Council of their handling of this request.

Dear Wirral Metropolitan Borough Council,

An invoice dated 28th February 2019 from Arlingclose Limited shows that Wirral Council paid "in respect of Treasury Consultancy Services" £6,000 for a "LOBO Prepayment report" (£5,000 + VAT).

This FOI request is for that LOBO Prepayment report and I also request that it is supplied in an electronic format.

I remind you of your duty under section 16 to provide advice and assistance to those making requests.

Yours faithfully,

John Brace

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Dear Mr Brace

 

We write further to your recent request for information in which you
asked:

 

An invoice dated 28th February 2019 from Arlingclose Limited shows that
Wirral Council paid "in respect of Treasury Consultancy Services" £6,000
for a "LOBO Prepayment report" (£5,000 + VAT).

 

This FOI request is for that LOBO Prepayment report and I also request
that it is supplied in an electronic format.

 

 

Your request for a copy of the report is refused under Section 43 (2) and
Section 41 of the Freedom of Information Act 2000. It is the Council’s
belief that the information you have requested is commercially sensitive
and that the commercial interests of both this Council and the third
party, namely Arlingclose Limited, would be substantially harmed by
disclosure.  The exemption at S43 is a qualified exemption which requires
us to consider the public interest in disclosing/not disclosing the
information sought.

 

Factors in favour of disclosing the requested  information

o The public interest in disclosure to promote transparency and
accountability of public authorities
o That public money is being used effectively

 

Factors in favour of withholding the requested information

o Disclosure would undermine the relationship between the Council and
its partnerships. There continues to be an active market in LOBO
repayments. Disclosure of sensitive commercial information would
impact on the 3^rd party by opening up its output/fees to its
competitors
o Disclosure would adversely affect the Council’s ability to obtain
confidential advice and would be to the Council’s detriment when
undertaking future LOBO transactions as this could influence discount
rates, premium costs and advisory fees

 

As we believe the commercial interest of both the Council and Arlingclose
Limited would be harmed, we have also sought the opinion of Arlingclose
Limited who confirms that it does not consent to disclosure on the basis
that its commercial interests would be damaged for the reasons set out
above.  The Council considers that the public interest in withholding the
information outweighs disclosure and that in all the circumstances, the
exemption under s43 (2) FOIA applies in this case.

The exemption at Section 41 FOIA also applies, Information provided in
confidence.  Disclosure of sensitive commercial information provided by
Arlingclose Ltd would constitute an actionable breach of confidence.  All
analysis, reports, calculations and advice provided by Arlingclose is
considered “Confidential Information” and under the terms of their
agreement with the Council, a clause on confidentiality is in place. 
Disclosure would constitute an actionable breach of  confidence.

You have the right under Section 17 of the Freedom of Information Act 2000
to ask for an internal review of the refusal of the information requested.
Please direct any request for an internal review to
[1][Wirral Borough Council request email] and your request will be allocated to
an independent officer for review.

 

You also have the right to complain to the information Commissioner, if
you are dissatisfied with the outcome of any internal review, who can be
contacted at [2]https://ico.org.uk/global/contact-us/

 

Yours sincerely

 

 

Lynette Paterson

Principal Information Management Officer

Wirral Council

Business Management - ICT

Treasury Building

Argyle Street

Birkenhead

Wirral

CH41 1AH

 

Tel: 0151 691 8201

[3][Wirral Borough Council request email]

 

 

 

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protected by the Copyright, Designs and Patents Act 1988.   You are free
to use it for your own purposes, including any non commercial research you
are doing and for the purposes of news reporting. Any other reuse, for
example commercial publication, would require our specific permission, may
involve licensing and the application of a charge

 

 

 

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References

Visible links
1. mailto:[Wirral Borough Council request email]
mailto:[Wirral Borough Council request email]
2. https://ico.org.uk/global/contact-us/
3. mailto:[Wirral Borough Council request email]

Dear Wirral Metropolitan Borough Council,

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

I am writing to request an internal review of Wirral Metropolitan Borough Council's handling of my FOI request 'LOBO Prepayment Report (Arlingclose Limited)'.

Your refusal of this request was on the basis of section 41 (information provided in confidence) and section 43 (commercial interests).

On the first reason for refusal, section 41 for there to be a valid refusal, section 17(1)(c) of the Freedom of Information Act 2000 required Wirral Council to include in the notice which "states (if that would not otherwise be apparent) why the exemption applies.

You state in your refusal "Disclosure of sensitive commercial information provided by Arlingclose Ltd would constitute an actionable breach of confidence. All analysis, reports, calculations and advice provided by Arlingclose is considered “Confidential Information” and under the terms of their agreement with the Council, a clause on confidentiality is in place. Disclosure would constitute an actionable breach of confidence."

However, this is not otherwise apparent to someone (namely the person who has made the request) as you do not include in your reply a quote from the relevant part of the text of the agreement between Arlingclose Ltd and the Council (such as the clause you refer to on confidentiality), but instead merely assert that the information requested is "confidential information".

However Wirral Council has a standard terms and condition for services that are included in contracts/agreements in relation to FOI requests which are quoted below:-

"F4 FREEDOM OF INFORMATION

F4.1 The Contractor acknowledges that the Council is subject to the requirements of the Freedom of Information Act 2000 ("FOIA") and the Environmental Information Regulations 2004 ("EIR"). The Contractor must assist and cooperate with the Council (at the Contractor's expense) to enable the Council to comply with these information disclosure requirements.

F4.2 The Contractor must:
F4.2.1 transfer any request for information to the Council as soon as practicable after receipt and in any event within 5 working days;
F4.2.2 provide the Council with a copy of all information in the form required by the Council require within 5 working days (or such other period as the Council may specify) of a request for that information; and
F4.2.3 provide such assistance as the Council reasonably request to enable the Council to respond to a request for information within the time for compliance set out in section 10 of the FOIA or regulation 5 of the EIR.

F4.3 The Council will be responsible for determining at its absolute discretion whether any information:
F4.3.1 is exempt from disclosure in accordance with the provisions of the FOIA or the EIR;
F4.3.2 is to be disclosed in response to a request for information. The Contractor will not respond directly to a request for Information unless expressly authorised to do so by the Council.

F4.4 The Contractor acknowledges that the Council may be obliged under the FOIA or EIR to disclose Information;
F4.4.1 without consulting the Contractor, or
F4.4.2 following consultation with the Contractor and having taken the Contractors views into account.

F4.5 The Contractor acknowledge that any lists or schedules provided by the Contractor outlining information the Contractor considers to be confidential are of indicative value only and that the Council may nevertheless be obliged to disclose confidential information in accordance with this clause."

Wirral Council in their reply to this request state "Disclosure of sensitive commercial information provided by Arlingclose Ltd would constitute an actionable breach of confidence. All analysis, reports, calculations and advice provided by Arlingclose is considered “Confidential Information” and under the terms of their agreement with the Council, a clause on confidentiality is in place. Disclosure would constitute an actionable breach of confidence."

Clearly the above quote from Wirral Council's standard terms and conditions for services in relation to FOI requests states the complete opposite of what Wirral Council assert. Clause F4.4 states "The Contractor acknowledges that the Council may be obliged under the FOIA or EIR to disclose Information; ... and following consultation with the Contractor and having taken the Contractors views into account." and clause F4.5 states "The Contractor acknowledge that any lists or schedules provided by the Contractor outlining information the Contractor considers to be confidential are of indicative value only and that the Council may nevertheless be obliged to disclose confidential information in accordance with this clause." so therefore disclosure of confidential information by Wirral Council, whether determined by the agreement to be confidential information or by the Contractor to be confidential information would not constitute an actionable breach of confidence as the agreement with Arlingclose Ltd specifically allows for disclosure!

In relation to the refusal on section 43 (commercial interests) grounds, Wirral Council state that "it is the opinion of Arlingclose
Limited who confirms that it does not consent to disclosure on the basis that its commercial interests would be damaged for the reasons set out
above" - the reasons given were:-

"Disclosure would undermine the relationship between the Council and its partnerships. There continues to be an active market in LOBO
repayments. Disclosure of sensitive commercial information would impact on the 3^rd party by opening up its output/fees to its competitors"

and

"Disclosure would adversely affect the Council’s ability to obtain confidential advice and would be to the Council’s detriment when undertaking future LOBO transactions as this could influence discount rates, premium costs and advisory fees"

The requester disputes the first reason given, as the contract that Wirral Council has with Arlingclose Ltd (see clauses 4.4/4.5 above) meant that the Contractor agreed that confidential information could be disclosed in response to a FOI request despite the Contractor objecting to such disclosure, disclosure of the report wouldn't change whether there is an active market in LOBO repayments. The fee charged for the report (£6,000) is already published as part of this request on the whatdotheyknow.com website at https://www.whatdotheyknow.com/request/l... which can be viewed by its competitors, therefore this reason doesn't make sense.

In relation to the second reason given no evidence has been given to support this assertion that it would affect the Council's ability to obtain confidential advice and future LOBO transactions are determined by the contracts Wirral Council has already entered into. Lastly s.43 can only apply to some of the information requested not all of it.

Finally in relation to an unstated factor in the public interest test in favour of disclosing the requested information, if there is an active market in LOBO repayments, then disclosure of the report would shed light on advice received by Wirral Council that has informed its decision making with regards to its existing LOBO loans. The large amounts paid by Wirral Council in relation to LOBO loans each year are also a factor in favour of disclosure.

Therefore the requester respectfully requests that Wirral Council provide the report requested.

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

Yours faithfully,

John Brace