Hidden contracts! the public strikes back!

On 22nd October 2015 I Simon Bacon the writer of this blog applied to Derby City Council in Derby UK via FOI / EIR requesting the following information relating to the controversial joint waste contract linked to the highly controversial Sinfin, Derby gasification incineration plant.

 1- ALL CONTRACTS BETWEEN DERBY CITY COUNCIL AND DERBYSHIRE COUNTY COUNCIL RELATING TO THE JOINT WASTE CONTRACT.

 2- ALL CONTRACTS BETWEEN DERBY CITY COUNCIL AND ITS PARTNER DERBYSHIRE COUNTY COUNCIL WITH RESOURCE RECOVERY SOLUTIONS (RRS) AND / OR ITS PARENT COMPANY SHANKS / INTERSERVE.

 3- ALL CONTRACTS RELATING TO THE USE OF THE SINFIN TANNERY SITE - OWNED BY DERBY CITY COUNCIL BY RESOURCE RECOVERY SOLUTIONS (RRS) OR OTHER PARTIES.

 Derby City Council responded on 17th December 2015 in which it disclosed some of the requested information but withheld some of the information in part 2 of the request claiming the adverse affect to the confidentiality of commercial information. What was provided was a series of documents with many redacted (blacked out pages) where the council and its supporters - Derbyshire County Council and Resource Recovery Solutions edited the documents to hide certain aspects of the documents which they did not want the public to see.
Here are a couple of examples from schedule 14 of the contract which covers the performance mechanism.

 

As you can see from the images when they redact information they really black it out!

 

I appealed this ruling and Derby City Council carried out an internal review and responded to me on December 24th 2015 that it maintained this position.

Having considered this battle of wills further I made a complaint against Derby City Council on 22nd February 2016 to the ICO - the Information Commissioner. The ICO then gave full consideration to my strongly put appeal while engaging with Derby City Council further.

The council and its fellow contract members attempted to paint a picture which included impacts on interests of Resource Recovery Solutions (RRS) siting that the withheld information included price mechanisms, volume allocations and proprietary contract tools and processes.

The council argued that RRS operated in a competitive waste market and disclosure would allow competitors to work out the deal and how it was structured resulting in a loss of its competitive edge.

The council went on to argue that the Sinfin waste sites novel nature has the capacity to become a "BEACON OF EXCELLENCE"

 

ENERGOS the developer of the incineration equipment being installed into this beacon of excellence had gone into administration in mid July 2016.
 

It was suggested that the competitors of RRS would benefit from the unique know how contained within the information and thus undermine the ability of RRS to utilise this for its own benefit damaging its commercial interests.

Other than the Derby, Glasgow and Milton Keynes projects that have moved ahead there is little evidence of other projects moving forward using such technology and in recent weeks a proposal to install similar tech on the Isle of Wight has been dropped - so not quite the beacon being suggested.

The ICO asked the council to provide a new schedule setting out in each instance the councils rationale for withholding information so that it matched the specific parts of the documents. Having been given further time to do so the council advised it had approached RRS and Derbyshire County Council but that they had declined to provide any further arguments or clarification.
The ICO in their ruling considered that the lack of clarity in the councils submissions suggests that the council either does not properly understand what the effects of disclosure would be or has struggled to meet the evidential and explanatory burden set by the exception.
 

 On 4th August 2016 the Information commissioner at the ICO RULED IN MY FAVOUR instructing Derby City Council to disclose the withheld information to myself as the complainant.

 

In early September 2016 Derby City Council was in no mood to lose their battle again a resident of Derby so instructed its legal team to appeal the ICO ruling and so work started on a legal appeal.

I as the original applicant was also in no mood to lose the battle and so registered as a party to the appeal which WAS set to be heard later in 2017 in London UK. After a delay of a number of months as two similar cases passed through the tribunal system the Derby case began to move forward.

In recent months a similar case relating to an incineration plant in Gloucestershire and its associated contract pretty much ruled in the original applicants favour - while the council in that case attempted to put a brave face on things while putting some spin on the ruling the applicants in Gloucestershire are very happy with the result of their battle. A similar ruling regarding an incineration plant contract in Worcestershire also placed pressure on Derby City Council who were then set a date by the General Regulatory Chamber who were running the appeal by Derby City Council where the council had to acknowledge if it proposed to continue with their appeal.

So two other appeals went against the local councils which forced Derby City Council into a corner over their appeal against the ICO ruling.

 Did they continue or did they rollover!

 

THEY ROLLED OVER AND BAILED OUT OF THEIR APPEAL ON MAY 11TH 2017

The councils legal team made the following statements when terminating the councils appeal.
"

"Our clients have been carrying out a fresh, detailed, careful and considered review of the disputed information with all interested parties taking into account the passage of time and developments since the initial request and the commencement of the Appeal.

Having concluded that reassessment and made recommendations accordingly, the interested parties have respectively reached agreed conclusions and advised the relevant public authority which has been able to make an updated decision on disclosure as a result.
Our clients have invested a great deal of time in reaching this decision and it is not one that has been taken lightly. Despite considering that much of the disputed information remains commercially sensitive and confidential, given the time that has now passed since the original request for information by the applicant and taking into consideration the current stage the facilities are now at, the likelihood of probable harm from disclosure of the disputed information into the public domain has reduced.
As a result our clients have asked us to confirm that the disputed information will be disclosed in its entirety. "
 

 Derby City Council admitted at a recent full council meeting that they and their supporters - Derbyshire County Council and RRS / SHANKS had already spent £20,000 on their fight to keep aspects of the Derby and Derbyshire waste contract secret - hidden away from the public. In a strange twist they appeared to be suggesting to the local newspaper the Derby Telegraph that they had NOT paid £20,000 to stop me from gaining a copy of the contracts as reported here http://www.derbytelegraph.co.uk/derby-man-wins-right-to-see-controversial-sinfin-incinerator-contract-but-council-to-appeal/story-30288364-detail/story.html

 

The council was simply playing with words - £20,000 was spent but the city council only paid a third of the payment!

What are they trying to hide from the residents of Derby and Derbyshire ? what is so controversial that they redact whole pages of their waste contract ?  In these times of austerity and government cuts surely the public have a right to know what their taxes are being spent on.

NOW WE HAVE THE CHANCE TO FIND OUT!

©SIMON BACON 2017

 

FOI - Freedom Of Information or Fear Of Informing the public

Freedom of information often known as FOI is currently a commonly used method of finding out aspects of your local councils business. We as council tax payers have a right to know what our taxes are being spent on.
It was with this in mind having noted recently that Derby City Council was facing charges from its recycler Biffa for contamination (which previously was not the case) that I set about requesting a copy of the contracts linked to the blue bin recycling scheme which I thought was a simple thing to do and expected few problems.
I asked for the following-

a copy of all current contracts relating to the blue bin material collected and its onward treatment - ie BIFFA etc.

The council had 20 working days to provide the requested information and I sat back and waited.
This is when the council started to play hard to get because on day 18 they decided they didn't know which contract I wanted and asked me to clarify this for them - I concluded this was a delaying tactic and so lodged a formal complaint - and clarified which contract I was interested in when responding to the councils FOI dept.
They then wheeled out another excuse to delay issuing what is only a contract linked to some recycling ! this time they said the following -
"In accordance with the Environmental Information Regulations 2004 - Regulation 7, Question 1 due to the volume and complexity of the request , we will need to extend the period to respond from 20 to 40 working days.  The revised deadline for our response is 21 October 2015."
So they had managed to stretch their response time to 40 days! what were they trying to hide!
Finally they gave their response - and it wasn't good news ! they partly declined to answer my requests siting commercial interests.
They said the following

"Your request has now been considered and part of the information you have requested in Question 1 is covered by an exemption under Freedom of Information.  We have attached part of the information however, in accordance with the Freedom of Information Act 2000 this part of the email acts as a part Refusal Notice.
The exemption applied is Section 43 – Commercial Interests  
We have applied this exemption because detailed costs cannot be disclosed as this would prejudice the commercial interests of both the Council and third parties.
Disclosure of this information would compromise future tenders and the cost of providing this service in the future could increase, as a result. Also, third parties could be commercially disadvantaged if their detailed pricing information was in the public domain.   
On balance we feel that the potential prejudice to the commercial interests of the Council and the other parties in disclosing this information outweighs the public interest in making it available in the public domain. It is therefore, not considered in the public interest to release this information because the cost of providing this service could increase in the future which could affect public services provided by the Council."

Now what struck me straight away was that this was a contract processing my rubbish using my money and I had a right to the facts. I already view the councils accounts so would know many of the facts they were looking to withhold.
So what did they do? well they issued a few documents relating to the processing of recyclables but then redacted large parts of the most recent correspondence between the council and Biffa - as shown below.

As you can see not only did they redact figures in the letter - which incidentally was relating to the contracts extension but also redacted whole paragraphs - so it wasn't possible to even work out what was being redacted.
These things are sent to try us but it is our right to know so there was only one thing to do - make an appeal to the council about the redaction.
If you make an FOI on a subject don't just accept the first result - they don't want to tell you their secrets so will try and fudge you with a redaction so set out why you should be issued a full copy of what you have asked for. In my case in the end I was successful when the Principal Information Governance Officer at Derby City Council found in my favour.
So what were they trying to hide? nothing more it would appear than the fact the more recycling that goes into the blue bin the less the council - and so us as residents pay via our taxes!
You would think this would be exactly what the council SHOULD be promoting to its residents - to inspire residents to recycle more but instead it hides the facts from the public by redacting aspects of the contract!
The unredacted letter appears below -

 

Why do the council fear telling the public the truth ! why do they fear FOI !

©SIMON BACON 2016