26th September 2016 - Incinerator secrecy - GCC offering blank cheque to big law firm
As you know, we still have not had sight of the full contract with UBB, and the case goes to court in London this week . It's in the news too - see http://bit.ly/2cEPg7U
We tried to find out what GCC is actually spending on keeping us in the dark.
Last month local 38 Degrees member Mervyn Hyde submitted the following Freedom of Information request to Gloucestershire County Council:
- Please tell us the total amount the council has spent to date on preventing disclosure of the unredacted UBB incinerator contract following FOI requests to do so.
- Please tell us how much of the total was comprised of legal fees.
- Please tell us the name of the legal firm hired to appeal the Information Commissioner’s decision relating to this matter.
- Please tell us how much has been paid to that firm to date and how much is currently owed.
- Please tell us the total fee the council anticipates having to pay this firm.
- Please tell us the total amount the council has set aside/budgeted to pay all costs relating to this matter.
- Please tell us who decided and/or authorised this expenditure and what their position is in the Council.
- Please tell us who decided and/or authorised the general nature of the Council's response to the FOI requests (i.e. the decision to continue to withhold the requested contract information).
The deadline for a response from GCC was Friday 16th. Having heard nothing by Monday 19th, Mr Hyde chased the request and received a response  on the 21st. Most information was withheld except to say that the law firm engaged is Eversheds LLP and the person responsible for the expenditure is the Director responsible for Waste. A phone call revealed that currently to be Mr Nigel Riglar.
The response to questions 5 and 6, however, has serious implications.
It indicates that GCC
- considers withholding the full incinerator contract information to be worth engaging a major law firm to defend ongoingly using public funds and
- has not set a budget for this, implying that Eversheds has had, and still has, carte blanche to go through whatever procedures may be required in order to continue to withhold information that the Information Commissioner ruled in November last year that it must disclose.
The preamble to the FoI response objects in particular to the use of the phrase "preventing" disclosure - but what has the council been doing if not this? Yet again GCC are refusing to provide any meaningful information about what they are doing with our money. This is a public body using unrestricted public funds to withhold information from the public about the spending of public funds on a public contract. It's like a hall of mirrors or some kind of weird nightmare. When do we get to wake up?
The court case (GCC vs Information Commissioner) runs from Tuesday to Friday this week in London . The public cannot input, but are free to attend and I will be going for the day on Thursday. I don't expect it to be entertaining, but at least I can report back. Watch this space...
Trusting that the truth will out sooner rather than later,
 TRIBUNAL INFORMATION
The public may attend the Tribunal (Gloucestershire County Council vs Information Commissioner), which will be held from 10am-5pm across four days from 27-30 September at Field House, 15-25 Bream Buildings, London EC4A 1DZ.
 FULL RESPONSE FROM GCC to Mr Mervyn Hyde's request is shown below:
The Information Management Service
Please ask for Teresa Wilmshurst
Telephone 01452 324000
Our ref: 3726560
Date: 21 September 2016
Dear Mr Hyde
I am pleased to provide a response to your request for information, received on 18 August 2016. I apologise for the delay in responding and any inconvenience this may have caused.
The Council does not consider that it has spent any money “preventing” disclosure of the Contract with UBB. The Council has followed due process regarding requests made under the Freedom of Information Act 2000 (“FOIA”) and the Environmental Information Regulations 2004, which allow for the legitimate redaction of information, such as information that is considered if released would be likely to harm commercial interests. To date, the Council has published over 95 per cent of the Contract, withholding only that information it feels is properly exempt from disclosure in line with its legal rights.
The Council can refuse to respond to requests in certain circumstances, depending on their wording or intent. In recognition of the public interest in this request we have chosen, on this occasion, to disregard wording that may be seen as vexatious. Please be aware that in future requests may be refused, if they are assessed as being captured by the Councils’ policy, which can be found at http://www.gloucestershire.gov.uk/extra/CHttpHandler.ashx?id=57829&p=0 . In order to ensure the request is not considered vexatious we have removed the word
‘preventing’ from our response below and have responded regarding the management of the requests relating to this matter.
1. Please inform me of the total amount the council has spent to date on the disclosure of the un-redacted UBB incinerator contract following FOI requests to do so.
Gloucestershire County Council Shire Hall, Westgate Street, Gloucester. GL1 2TG
The Council does not keep time recordings for all the officer time spent on managing the requests relating to the UBB contract, therefore information is not held about the total cost to the Council.
2. How much of the total was comprised of legal fees.
The Council has incurred costs associated with presenting and defending its appeal in line with its legal rights to do so. Information on the costs incurred is available elsewhere on the Gloucestershire County Council website at
(http://www.gloucestershire.gov.uk/over500) and therefore is exempt under Section 21 of the Freedom of Information Act (the Act); the information is already reasonably available to you.
3. The name of the legal firm hired to appeal the Information Commissioner's decision relating to this matter.
4. How much has been paid to that firm to date and how much is currently owed.
The amount paid to date is subject to the exemption in section 21 of the Act, as detailed in our response to question 2.
Section 22 of the Act (Information Intended for Future Publication) applies to the invoices the Council has received, but which are not yet published on the Council’s website. The amounts spent will be uploaded in due course, in line with our standard
The information is exempt from disclosure under Section 22(1) of
the Freedom of Information Act (FoIA). There is a clear intention to publish the information at a future date and in line with section
22(1)(c) it is considered reasonable in all the circumstances that the information should be withheld from disclosure until the date of publication. The application of section 22 is subject to the public interest test:
Arguments for release
• There is a general public interest in transparency and accountability for decision making (and especially financial decision making using public funds).
Arguments against release
• Information about payments is routinely published at regular intervals (within 20 working days of month end); therefore the Council considers the public are not negatively affected by waiting for the planned publication of the information.
• Early disclosure of that information, ahead of its scheduled release date, would be likely to result in the re-allocation of public resources to dealing with any subsequent enquiries and action resulting from the release.
Gloucestershire County Council Shire Hall, Westgate Street, Gloucester. GL1 2TG
• The additional time prior to publication is necessary to enable the proper analysis and scrutiny of the spend information in order to ensure personal data is not inadvertently released.
• Re-allocating public resource to preparing individual spend amounts for release would be likely to impact on the ongoing publication of regular spend data, putting the Council at risk of not being able to meet its Transparency duties.
Public Interest Conclusion
It is considered that the greater public interest therefore lies in not providing the information at this time. In coming to that conclusion, the public interest in providing the information has been carefully weighed against any prejudice to the public interest that might arise from withholding the information; in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
This response therefore acts as a refusal notice under section 17 of the FoIA.
5. What the total fee the council anticipates having to pay this firm.
This information is not held, as it will be dependent on the outcome of the Tribunal and any subsequent legal action or requests.
6. The total amount the council has set aside/budgeted to pay all costs relating to this matter.
This information is not held as it will be dependent on the outcome of the Tribunal and any subsequent legal action or requests.
7. Who decided and/or authorised this expenditure and what their position is in the Council.
Costs relating to this matter are authorised through the standard channels within the Council. Ultimate financial responsibility for legal fees incurred by the Council in this matter rests with the Director responsible for Waste.
8. Who decided and/or authorised the general nature of the Council's response to the FOI requests (i.e. the decision to continue to withhold the requested contract information).
The Council’s decision was reached through a collaborative approach, taking into account representations from relevant officers in the Council and UBB as well as advice from Eversheds and the Council’s Request Management Team (FOI/EIR).
The decision has not been made by a specific individual.