Pavement Management

Barrie Lambert made this Freedom of Information request to Merton Borough Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Merton Borough Council,

What are the terms of the Highway Maintenance and Improvement Contract awarded to FW Conway for a period of five years by the Cabinet decision of 13 June 2005?

What amendments, including additions, exemptions, derogations and extensions, have been made to the Highway Maintenance and Improvement Contract since its adoption on 13 June 2005?

What pavement management computer software systems have been used by the Council during the life of the Highway Maintenance and Improvement Contract with FW Conway, what is the annual cost year on year, and how many users are you licenced for year on year?

What reports concerning the condition and life history of pavement assets have been produced for the benefit of elected members since the Highway Maintenance and Improvement Contract was awarded to FW Conway on 13 June 2005?

What reports concerning the condition and life history of pavement assets were produced for the benefit of elected members in the two years preceding the award of the Highway Maintenance and Improvement Contract to FW Conway on 13 June 2005?

Yours faithfully,

Barrie Lambert

Sam Godfrey, Merton Borough Council

1 Attachment

Dear Mr Lambert

 

Thank you for your Freedom of Information request.  Your request has been
passed to the relevant officer to respond. 

 

Please find attached an acknowledgement letter.

 

Samantha Godfrey

Administrative Assistant

 

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Dear Sam Godfrey,

Further to your letter of 10 October 2011, the Borough's Response to my request about Pavement Management has been delayed.

As you are aware, the Borough has a legal obligation to comply with the FOI Act in this matter and should have responded promptly to my request by 31 October 2011.

I look forward to your immediate response to my query.

Yours sincerely,

Barrie Lambert

Sam Godfrey, Merton Borough Council

Dear Mr Lambert

Thank you for your email below. I have chased our Traffic and Highways section for their response this morning asking them to send their input to me urgently.

Please accept my apologies for the delay. As soon as I receive their response I will forward this onto you.

Samantha Godfrey
Administrative Assistant
 

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Sam Godfrey, Merton Borough Council

1 Attachment

Dear Mr Lambert

 

Your Freedom of Information request has now been considered by our Traffic
and Highways team and a reply is attached.  Please accept my apologies for
the late response.

 

Kind regards

 

Samantha Godfrey

Administrative Assistant

 

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Dear Ms Godfrey,

Thank you for your response to my request for information.

I am writing to request an internal review of Merton Borough Council's handling of my FOI request 'Pavement Management 3'.

Whilst the response to a part of my request is acceptable, the Borough’s Response fails to provide much of the information which I explicitly request.

What are the precise terms of the Highway Maintenance and Improvement Contract awarded to FM Conway for a period of five years by the Cabinet decision of 13 June 2005 including details of the payment mechanism(s) used and the procedure(s) followed to determine the rates schedule at each stage of the life of the contract?

Using a timeline, what specific amendments have been made to the Highway Maintenance and Improvement Contract including the actual changes to the schedule of rates for the tasks listed within the contract?

Yours sincerely,

Barrie Lambert

Sam Godfrey, Merton Borough Council

I am currently out of the office and will not be back until 7 November.

Please send anything relating to Freedom of Information requests to
[email address] where it will be dealt with by my colleagues.

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Dear Ms Godrey,

My request for an internal review refers to "Pavement" and not "Pavement 3" and should read as follows:

Thank you for your response to my request for information.

I am writing to request an internal review of Merton Borough Council's handling of my FOI request 'Pavement Management'.

Whilst the response to a part of my request is acceptable, the Borough’s Response fails to provide much of the information which I explicitly request.

What are the precise terms of the Highway Maintenance and Improvement Contract awarded to FM Conway for a period of five years by the Cabinet decision of 13 June 2005 including details of the payment mechanism(s) used and the procedure(s) followed to
determine the rates schedule at each stage of the life of the contract?

Using a timeline, what specific amendments have been made to the Highway Maintenance and Improvement Contract including the actual changes to the schedule of rates for the tasks listed within the
contract?

Yours sincerely,

Barrie Lambert

foi, Merton Borough Council

Your email has been received by the London Borough of Merton.
If you have made a Freedom of Information request it will be considered.
The Freedom of Information Act 2000 defines a number of exemptions that
may prevent us releasing information you have asked for. We will assess
your request to see if any of the exemption categories apply. We will tell
you if this is the case and let you know how you can appeal against our
decision..

If the information you have asked for contains a reference to a third
party then we might be consult them before deciding whether or not to
release the information to you. We will tell you if this is likely to
cause any delay to our response.

We intend to respond to your request within 20 working days, as defined by
the Freedom Of Information Act 2000.
If you have any queries or concerns then please contact the Freedom of
Information Officer at the London Borough of Merton, Civic Centre, London
Road, Morden SM4 5DX or e-mail [1][Merton Borough Council request email]

Further information is also available from the Information Commissioner
at:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Telephone: 01625 545 700
[2]www.informationcommissioner.gov.uk

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References

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1. mailto:[Merton Borough Council request email]
2. http://www.informationcommissioner.gov.uk/

Rosalind Girdlestone, Merton Borough Council

Dear Mr Lambert,

 

Thank you for your email dated 4 November.  I have forwarded this onto
Simon Guild, the Head of Information at Merton Council.  As previously
advised, he will carry out an internal review.

 

If you have any queries or concerns about this please contact me or Simon
Guild at [1][Merton Borough Council request email]

 

Kind regards,

Rosalind Girdlestone
Freedom of Information Officer
Merton Council
Tel: 020 8545 4634
[2]www.merton.gov.uk

.$B!!.(B

 

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References

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1. mailto:[Merton Borough Council request email]
2. http://www.merton.gov.uk/

Dear Rosalind Girdlestone,

You seem to have combined the 2 seperate internal reviews I asked for, one concerning the FW Conway contract ("Pavement" on this site) and the other concerning the Jacobs contract ("Pavement 3" on this site). This is fairly confusing to an old gent, particularly when the report of the internal review contains statements which would seem to be mutually exclusive. It also needlessly muddies the waters in the event of a complaint to the Information Commissioner.

I will be grateful if you can sort out, finalise and re-post the results of each review seperately, each on its appropriate thread.

Yours sincerely

Barrie Lambert

Rosalind Girdlestone, Merton Borough Council

I am currently out of the office.  I will be back in on Tuesday 6
December. 

Please redirect information requests to [Merton Borough Council request email]  Or if your
enquiry is urgent please contact Simon Guild or Cerys Ledger on 020 8545
4182/4875.

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Rosalind Girdlestone, Merton Borough Council

2 Attachments

Dear Mr Lambert,

I apologise for any confusion caused. Points 5 and 6 of our original response relate to this email thread and I have attached a revised version of Simon Guild's letter dated the 29 November which includes answers to just these points.

Kind regards,

Rosalind Girdlestone
Freedom of Information Officer
Merton Council
020 8545 4634
www.merton.gov.uk

$B!!(J

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Dear Ms Girdlestone,

In his letter of 2 November 2011 Mr Guild states: "The report dated 23rd February 2005 entitled “Highway Maintenance Investment Strategy” was put before the Strategy Board before being summarised, presented and approved by Cabinet on the 2nd March 2005."

Please will you provide me with links to, or copies of the “Highway Maintenance Investment Strategy”, the Strategy Board minutes , and the summary presented to the Cabinet held on 2 March 2005 and the appropriate minute.

Kind regards

Barrie Lambert 

Rosalind Girdlestone, Merton Borough Council

Dear Mr Lambert,

Freedom of Information Act 2000/ Environmental Information Regulations 2004- Information request

Thank you for your request for information received today.

Please send all future information requests to [Merton Borough Council request email]

Your request is being considered and I will provide the information requested within 20 working days, providing that the information is not exempt. If you have to pay for this information, we will tell you before we process your request.

If you have any queries or concerns then please contact me or Simon Guild, the Head of Information Governance at Merton Council, Civic Centre, Morden, SM4 5DX or e-mail [Merton Borough Council request email]

Further information is also available from the Information Commissioner at:
The Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.
Telephone:0303 123 1113
Website: www.ico.gov.uk

Yours sincerely,

Rosalind Girdlestone
Freedom of Information Officer
Merton Council
020 8545 4634
www.merton.gov.uk

 

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Barrie Lambert left an annotation ()

I have made a complaint to the Information Commissioner stating: "On 3 November 2011 I asked for an internal review specifying the questions which still required answers.

"I received a reply dated 29 November 2011 providing a marginal elaboration of the original response which did not answer the specific questions I asked. A refusal notice has not been issued and no reasons have been given for the Borough’s failure to provide me with the information I have requested.

"This contract was agreed in 2005, revised in 2010 and terminates in 2012. Because of the effluxion of time, the precise terms of this contract, including any revisions, cannot be considered either confidential nor commercially sensitive."

Samantha Footman, Merton Borough Council

4 Attachments

Dear Mr Lambert,
Please find attached the response to your recent request made under the
Freedom of Information Act 2000.
<<ER013 Lambert Response.doc>> <<ER013 Strategy Board Report 23rd February
2005.pdf>> <<ER013 Cabinet Budget Report 14th February 2005.pdf>> <<ER013
Budget Report Minutes 2nd March 2005.pdf>>

Yours sincerely
Samantha Footman | Complaints Officer
Information Governance | Corporate Services
London Borough of Merton
Merton Civic Centre, London Rd, Morden, Surrey SM4 5DX.
Direct : 020 8545 4149 | switchboard : 020 8274 4901
[1][email address]
[2]www.merton.gov.uk

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References

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1. mailto:[email address]
2. file://www.merton.gov.uk

Dear Samantha Footman,

Thank you for the council documents you sent to me yesterday in response to my request of 15 December 2011.

Yours sincerely,

Barrie Lambert

Barrie Lambert left an annotation ()

The current status of my request remains the same as it was on 19 December 2011. I have not received the information I requested and a refusal notice was not issued.

The Information Commissioner has yet to make a decision on my complaint.

I have, however, on request, received copies of council documents already in the public domain.

Barrie Lambert left an annotation ()

I have just sent the following email to the IVO about this request.

The London Borough of Merton Borough has posted a letter dated 7 March 2012 relating to FS50428141 at
http://www.whatdotheyknow.com/request/pa... a thread otherwise devoted to a related request for information FER0428392. A copy of the letter is attached as Merton Borough Council_7 March 2012.rtf.

All other information relating to FS50428141 is at
http://www.whatdotheyknow.com/request/pa... .

The letter of 7 March acknowledges the public interest arguments for disclosing some of the information I have requested but withhold some information on the basis of FW Conway’s argument that “disclosure of their rates and cost data could enable their competitors to copy their approach or undercut them in future tendering exercises and could also damage their relationship with any existing customers who have secured less favourable rates than those secured by Merton Council”.

Merton also states the public interest arguments in favour of
withholding the information I have requested. I quote from the letter, numbering the points and commenting directly on each:

1. “Disclosure could hinder the council's ability to achieve value for money in future procurement exercises, as suppliers could become reluctant to engage with the council in future. This could mean the council would receive less interest in future tender exercises and so fewer potential suppliers to choose from. And those suppliers who do engage with the council could offer less or incomplete information to the council for fear of this information being disclosed to the public.”

This is purely speculative and concerns the state of mind of potential suppliers at some unspecified future point in unspecified circumstances. Given that the Council not only structures the work package when it puts road maintenance work out to tender, determines the specification requirements - which could well include a “catch-all” general requirement on the supplier to disclose all relevant information to the council prior to and during the life of the contract and, indeed, after its completion - and the payment structures which will be be incorporated into the contract, but also determines how the contract should be awarded - that is, by auction, tender, or negotiation, or some
combination of these methods - it is an argument against disclosure which is totally without merit.

2. “Tenderers may also increase their bid pricing to protect themselves for lost of commercially sensitive information and the competitive advantage that comes from it. The impact of these effects would be to
prevent the council from securing contracts which are the best value for money.”

This is again a highly speculative argument which may have merit in some circumstances but since my request concerns the Highways contract - which essentially involves the digging out, filling and re-surfacing of roads and footways - it has no application. The open market prices ofm materials, labour and plant at any point in time can be ascertained by anyone - the council, taxpayers and competitors - both prior to and following a successful bid. Given the nature of the construction market, it is also more than likely that any competitors with a passing interest in the issue would have obtained details of the job rates specified in the contract at any point over the past seven years with minimal effort. It follows from this that the link which the council
suggests might exist between confidentiality and "true and fair
competition" is uncertain in its abstraction and, in this particular context, demands a clear and explicit standard against which my request for information may be tested which the Council has clearly failed to provide.

3. "The disclosure of the withheld information could also decrease the differentiation between suppliers, as processes, practices and bids may become homogenised. This would endanger true and fair competition and would not be in the public interest."

On a slightly academic note, differentiation is both a cause and product of market failure and the withholding of information tends to intensify the perception of difference between, whilst blurring the degree of homogeneity amongst, the goods and services offered by different suppliers. It is a commonplace of economic theory that economic efficiency is most likely to be attained when products are homogeneous; but, be that as it may, even in the real world the notion that "true and fair competition" requires the withholding from taxpayers hard information detailing the costs and prices of digging and re-surfacing roads in a seven year contract in the final few months of life is manifestly absurd.

As a final point, which may or may not be related to any of the above, on 18 July 2011, Agenda item 9 on the agenda of Merton Borough Council's Cabinet had as its subject, "Highway Maintenance and Improvement Contract", and was prefaced by the statement:

"Reason for Urgency
The legal requirement for Access to information has not been met. The Chair has approved the urgent submission of this report as a notice inviting Tenders for the procurement of a new Highways Maintenance and Improvement Term Contract must be published on 20th July 2011 in the Official Journal of the European Union (OJEU) to allow the new Contract to be in place on 1st September 2012." (www.merton.gov.uk/democratic_services/w-agendas/w.../1053.pdf )

I hope this provides an indication of my views on Merton's final response to my request.

Barrie Lambert left an annotation ()

This is the summary of the Decision Notice:

"Case Ref: FER0428392
Date: 26/04/2012 
Public Authority: Merton London Borough Council 
Summary: The complainant requested information from the London Borough of Merton (“the council”) concerning a contract. The council disclosed the information with the exception of some that it considered was excepted under regulation 12(5)(e) of the Environmental Information Regulations 2004 (“the EIR”), the exception relating to commercial confidences. The Commissioner’s decision is that the council correctly withheld information using regulation 12(5)(e). The Commissioner does not require any steps to be taken. 
Section of Act/EIR & Finding: EIR 12(5)(e) - Complaint Not upheld"

The basis of the Decision lies in paragraph 19 of the Notice, which states:

"19. The Commissioner considered the withheld information together with the above argument and he was satisfied that there it was more probable than not that the disclosure of the withheld information, given the level of detail it provides, would adversely affect the commercial interests of the contractor when bidding for future contracts and damage its commercial relationship with other customers. The Commissioner notes that the contract dates from 2005-10 but includes an extension and variation for the years 2010-12. The council told the Commissioner that the rates are still considered to be current although the contract has been extended. The Commissioner was willing to accept that the information was not of such an age that it would not still prejudice the commercial interests of the contractor."

Given the nature of the construction business and of the specific work covered by this particular contract, I must admit that I am somewhat bemused by this argument. I am still considering whether it is worth making an Appeal to the First Tier Tribunal.

Here is the Decision Notice in full:

Reference: FER0428392
Freedom of Information Act 2000 (FOIA)
Environmental Information Regulations 2004 (EIR)
Decision notice
Date: 26 April 2012
Public Authority: London Borough of Merton
Address: Civic Centre
London Road
Morden
Surrey
SM4 5DX
Decision (including any steps ordered)
1.
The complainant requested information from the London Borough of Merton (“the council”) concerning a contract. The council disclosed the information with the exception of some that it considered was excepted under regulation 12(5)(e) of the Environmental Information Regulations 2004 (“the EIR”), the exception relating to commercial confidences.
2.
The Commissioner’s decision is that the council correctly withheld information using regulation 12(5)(e).
3.
The Commissioner does not require any steps to be taken.
Request and response
4. On 3 October 2011, the complainant requested information from the council in the following terms:
“What are the terms of the Highway Maintenance and Improvement Contract awarded to FW Conway for a period of five years by the Cabinet decision of 13 June 2005?
What amendments, including additions, exemptions, derogations and extensions, have been made to the Highway Maintenance and Improvement Contract since its adoption on 13 June 2005?”
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Reference: FER0428392
5. The council provided a written response on 2 November 2011.
6. The complainant requested an internal review on 4 November 2011. He explained that he was dissatisfied because he considered that the council’s response had failed to provide much of the information he had requested.
7. On 29 November 2011, the council completed an internal review. The council elaborated on its original response and it said that it had attached a table showing additions to the schedule of rates in date order.
Scope of the case
8.
The complainant contacted the Commissioner to complain about the way his request for information had been handled. During the Commissioner’s investigation, the majority of the information requested by the complainant was disclosed, thereby informally resolving that part of the complaint. The outstanding issue is the use of the exception under regulation 12(5)(e) to withhold some information i.e. the rates and percentage terms negotiated for the contract extension. This notice relates to that matter only.
Reasons for decision
Is the information environmental?
9. For clarity, the contract concerned is the “Highways Maintenance and Improvements Contract”. In accordance with regulation 2 of the EIR, information will be “environmental” if it concerns activities affecting the elements of the environment, one of which is the land. The Commissioner accepts that the EIR was the correct legislation under which to consider the request given the nature of the contract.
Regulation 12(5)(e)
10. This exception concerns the confidentiality of commercial or industrial information where such confidentiality is provided by law. When assessing whether this exception is engaged, the Commissioner will consider the following questions:

Is the information commercial or industrial in nature?

Is the information subject to confidentiality provided by law?
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Is the confidentiality required to protect a legitimate economic interest?

Would the confidentiality be adversely affected by disclosure?
Is the information commercial or industrial in nature?
11. The Commissioner considers that for information to be commercial or industrial in nature, it will need to relate to a commercial activity. The essence of commerce is trade and a commercial activity will generally involve the sale or purchase of goods or services for profit. The withheld information relates to a contract that the council has with a third party concerning highway maintenance. The council advised the Commissioner that the specific information being withheld in this case is the schedule of rates and the precise percentage terms negotiated. In view of this, the Commissioner is satisfied that the information is clearly commercial in nature.
Is the information subject to confidentiality provided by law?
12. The Commissioner considers that “provided by law” will include confidentiality imposed on any person under the common law of confidence, contractual obligation, or statute.
13. The Commissioner understood that the council’s position was that the information was covered by the common law of confidence. When considering whether the common law of confidence applies, the Commissioner’s approach is similar in some respects to the test under section 41 of the FOIA. The key issues the Commissioner will consider when looking at common law confidences under this heading are:

Does the information have the necessary quality of confidence? This involves confirming that the information is not trivial and is not in the public domain.

Was the information shared in circumstances importing an obligation of confidence? This can be explicit or implied.
14. Having considered the withheld information, the Commissioner is satisfied that the information is not trivial and is not in the public domain. He therefore concludes that the information has the necessary quality of confidence.
15. The council explained to the Commissioner that there was an implicit understanding that the withheld information would not be disclosed as this was the standard practice regarding procurement information of this nature. In view of this, the Commissioner accepts that the information was shared in circumstances importing an obligation of confidence.
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Reference: FER0428392
Is the confidentiality required to protect a legitimate economic interest?
16. The Commissioner considers that to satisfy this element of the test disclosure would have to adversely affect a legitimate economic interest of the person (or persons) the confidentiality is designed to protect. In the Commissioner’s view, it is not enough that some harm might be caused by disclosure. The Commissioner considers that it is necessary to establish on the balance of probabilities that some harm would be caused by the disclosure. In accordance with various decisions heard before the Information Tribunal, the Commissioner interprets “would” to mean “more probable than not”. In support of this approach, the Commissioner notes that the implementation guide for the Aarhus Convention (on which the European Directive on access to environmental information and ultimately the EIR were based) gives the following guidance on legitimate economic interests:
“Determine harm. Legitimate economic interest also implies that the exception may be invoked only if disclosure would significantly damage the interest in question and assist its competitors”.
17. The Commissioner will not accept speculation from a public authority regarding harm to the interests of third parties without evidence that the arguments genuinely reflect the concerns of the third parties involved. In line with this approach, the council consulted with the contractor involved and supplied the Commissioner with a copy of their response as evidence that the arguments reflected the genuine concerns of the contractor. Having considered this, the Commissioner was satisfied that there was sufficient evidence to demonstrate that the authority was not speculating on behalf of the contractor.
18. The argument proposed to the Commissioner was that the disclosure of the withheld information would adversely affect the commercial interests of the contractor because it would essentially allow their competitors to copy their approach or undercut them in future tender exercises. There was also a concern that the disclosure could damage their relationship customers who would clearly wish to secure the best possible deal and may be dissatisfied as a result of viewing the disclosed information.
19. The Commissioner considered the withheld information together with the above argument and he was satisfied that there it was more probable than not that the disclosure of the withheld information, given the level of detail it provides, would adversely affect the commercial interests of the contractor when bidding for future contracts and damage its commercial relationship with other customers. The Commissioner notes that the contract dates from 2005-10 but includes
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Reference: FER0428392
an extension and variation for the years 2010-12. The council told the Commissioner that the rates are still considered to be current although the contract has been extended. The Commissioner was willing to accept that the information was not of such an age that it would not still prejudice the commercial interests of the contractor.
20. The council proposed other arguments relating to its own commercial interests which the Commissioner did not find sufficiently persuasive to engage the exception. In particular, the council argued that disclosure of the information may hinder the council’s ability to achieve value for money in future procurement exercises, as suppliers could become reluctant to engage with the council in the future. The council expressed concern that suppliers may offer less or incomplete information for fear that information could be disclosed to the public. The council also argued that those submitting tenders may increase their bid pricing to protect themselves from commercial losses resulting from the disclosure of information. Finally, the council said that it was concerned that disclosure may decrease the differentiation between bidders.
21. As explained above, the Commissioner has to be satisfied that the prejudice described would be “more probable than not”. In the cases of the arguments put forward regarding the council’s own commercial interests, the Commissioner considered that there were powerful arguments against this being the case. The Commissioner’s published guidance on section 43(2), the exemption relating to commercial interests under the Freedom of Information Act 2000, states that public authorities should be wary of making the argument that the potential for commercial information to be released would reduce the number of companies willing to do business with the public sector or result in less information being provided, leading to reduced competition and increased costs. The guidance states the following:
“In practice, many companies may be prepared to accept greater public access to information about their business as a cost of doing business with the public sector. And the overall value of public sector contracts is a great incentive to tender for them.
Increasing access to information about the tendering process may in fact encourage more potential suppliers to enter the market. A better understanding of the process, the award criteria, knowledge of how successful bids have been put together, could also lead to improved bids being submitted in the future. This will lead to more competition and so decrease costs to the public authority. Indeed where a contract comes up for renewal, limiting this kind of information may well favour the current contractor and reduce competition”.
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Reference: FER0428392
Public interest test
Public interest arguments in favour of disclosing the information
22. There is always some public interest in the disclosure of information for its own sake. This is because disclosure of information serves the general public interest in promotion of better government through transparency, accountability, public debate, better public understanding of decisions, and informed and meaningful participation by the public in the democratic process.
23. There is also a more specific public interest in understanding how public money is being spent when a contract is awarded to a third party and understanding whether the contractor is providing a value-for-money service.
Public interest arguments in favour of maintaining the exception
24. The exception under regulation 12(5)(e) is designed to recognise that there are certain circumstances in which it is appropriate to withhold information that would harm the commercial interests of a third party. There is a public interest in ensuring that the commercial interests of a third party are not prejudiced in circumstances where it would not be warranted or proportionate.
25. In this case, the Commissioner was satisfied that it was more probable than not that disclosure of the withheld information would adversely affect the commercial interest of the contractor by providing information that could be exploited by its competitors and customers or which may damage the contractor’s relationship with its customers.
Balance of the public interest arguments
26. The council recognised the strong public interest in accountability about public money. Such concerns are arguably even more pressing given the current economic climate and the Commissioner notes that this particular contract has been the subject of a two year extension clause which may increase the public interest in transparency surrounding costs. However, the council said that it has already provided a significant amount of information to the complainant about the contract including the total annual cost year by year. The council also said that it is satisfied that its own processes are robust enough to ensure that value for money is secured.
27. The Commissioner was satisfied that if this information was disclosed, it would prejudice the commercial interests of the contractor for the reasons described above. He is satisfied that the level of prejudice would be severe enough to outweigh the public interest in disclosure.
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Reference: FER0428392
Disclosure of such detailed cost information would impact significantly on the contractor’s ability to be as competitive as possible by disclosing to its competitors the details of its general approach. This would allow those competitors to understand, to a very detailed level, how the contractor had managed the costs involved which could lead to imitation or undercutting in the future. Disclosing information of this nature could also damage significantly the company’s relationship with its other customers.
28. Having considered all the circumstances, the Commissioner agrees with the council that an appropriate level of transparency has been struck in this case and that disclosure of the total annual costs of the contract year by year is enough to satisfy the legitimate public interest in assessing whether the council is securing value for money. It is the Commissioner’s view that disclosing the contractors’ individual cost information and the precise percentage terms negotiated would not be proportionate in the circumstances of this case.
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Right of appeal
29.
Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from:
First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LE1 8DJ
Tel: 0300 1234504
Fax: 0116 249 4253
Email: informationtribunal@hmcts.gsi.gov.uk
Website: www.justice.gov.uk/guidance/courts-and-t...
30.
If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website.
31.
Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.
Signed ………………………………………………
Andrew White
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF