[Summary: exploring on a local open contracting campaign victory and it’s implications for contract transparency]
On Friday, the Information Rights Tribunal ruled on the appeal by Gloucestershire County Council against an earlier ruling by the Information Commissioner that the contract for a large PFI (Public Private Partnership) project to build an waste incinerator at Javelin Park near Stroud should be substantially published.
Campaigners have been fighting for access to the contract since 2015, when their first Freedom of Information Request was refused. Although we discovered earlier this year that the contract text had been accidentally put into the public domain by the Council failing to properly apply all the redactions they have been arguing for to an earlier FOI response, the Information Tribunal ruling is important in that it:
- Sets out clearly the Tribunal’s view on the sections of the contract and it’s schedules that should be in the public domain (almost all of it);
- Sets out clear reasoning applicable to other UK contracts – supporting the idea that there is a strong public interest in the text of contracts, and that exceptions for commercial confidentiality should be minimal;
- Provides support for the idea that contract text should be proactively published.
You can find a copy of the ruling here, but, as it runs to 67 pages I’ve pulled out a few of the key points below.
(A) The basics
In paragraph 6 – 21 the Tribunal helpfully describe the background of the case – which involves a 25-year Public Private Partnership contract involving the build and operation of a Waste Incinerator, with an estimated overall contract value of £500m, and annual capacity of up to 190,000 tonnes.
The original request for an unredacted copy of the contract was made under the Environmental Information Regulations (EIR) – and was fought by the council on the grounds of Intellectual Property Rights, and Commercial Confidentiality.
(B) The arguments
Below is a non-exhaustive summary of arguments explored in the tribunal report (from the perspective of a non-lawyer trying to sense-make):
(1) Environment Information Regulations vs FOI? The council argued that sections of the contract should be considered under FOI (slightly weaker access rights) instead of Environment Information Regulations. The Tribunal ruled that the contract, as a whole, fell under EIRs (Para 39 & 40) as it, as a whole, represents a measure with substantial environmental implications.
(2) Commercial confidentiality? The council argued that large sections of the contract, including pricing and volume information, were commercially sensitive and their disclosure could pose a risk to both the private contractor, and the council, in terms of impacts on any future tendering activity.
In paragraph 44 the tribunal provide a useful discussion of EIR Regulation 12(5)(e) and the difficulty of working out to what extent an adverse effect of disclosure on economic interests of parties need to be established to justify confidentiality. However, the arguments of the Tribunal hinge much more on Schedule 23 of the contract itself, which was headed “Commercial sensitive contractual provisions”, and which was cited in the contract (§84.1) as the list of items that should be kept confidential by the parties.
A large quantity of the redactions sought by the Council, and which they appears to have spent over £200,000 fighting for (based on transactions to their lawyers in the Spending over £500 data), are not contained in this schedule.
Whilst it therefore appears the contract did follow good practice of agreeing from the outset any sections that could be subject to confidentiality, the Council did not follow this in actually applying redactions.
(3) Public interests in disclosure? The Tribunal evaluated each of the redactions sought by the council, and tested (a) whether confidentiality could be reasonably expected under the contract clause and schedules referring to this; and (b) whether there was, in any case, a public interest in disclosure.
Paragraphs 57 – 59 discuss the basis of public interest are worth quoting at length:
“§57. …Concerns have been expressed about the EfW technology chosen by the Council, which those against it say may involve harmful emissions and toxic waste left over from the scrubbing process. Planning concerns have been expressed about the height, mass and design of the plant and the increase in heavy road traffic which will be caused along with consequential air pollution. Although we are not in any position to assess the merits of these concerns, they are clearly genuine and not frivolous.
§58. The Contract itself is a PFI contract involving the expenditure of a great deal of public money over many years;… We can, we think, take judicial note of the fact that the PFI model is itself controversial, with legitimate concerns expressed about bad value for money, opacity and the tendency to load expenditure on future generations. Further, it is said that the structure of the Contract, by requiring the Council to pay for a certain amount of waste to be incinerated (the so-called “take or pay” arrangement) may have tied the Council in to supply a quantity of waste which is not viable in future and may have negative environmental effect of discouraging recycling…
§59. Given those considerations, in our view there was a significant public interest in the disclosure of the entire contract, in the interests both of transparency and accountability, ie the enable the public to be informed as to exactly what the Council had agreed on their behalf and its long-term consequences and to hold it properly to account, in particular through Council elections.”
On the issue of whether sections of the contract can be selectively disclosed, the Tribunal state:
§59. “… We make clear that we are not suggesting that the exercise is an ‘all or nothing’ one all we are doing is recognising that the provisions which the Council seeks to withhold are part of a greater interlocking whole and must inevitably be seen in that context.”
They further draw attention to the fact that, when the original request was made in March 2015:
“§61…”the controversy was particularly intense and there was a danger that the whole Contract would have to be terminated at a cost, according to the Council of up to £100 million. At that stage, in our view, the Council’s obligation to act transparency was particularly strong as was the public interest in the exact position in relation to the compensation payable in so far as the Contract contained relevant provisions.”
They also argue that what matters is not how much of the text of a contract is in the public domain (the council argued that 95% of the text was public from the 1000+ pages of documents), but the substantives of that text. The tribunal state:
“In our view, the fact that the public authority has disclosed some information in the past cannot be relevant to the issue of whether they should have disclosed more.”
On the majority of individual redactions evaluated, the Tribunal find the public interest overwhelmingly supports publication. Paragraphs 74 – 216 go through the contract redaction-by-redaction, schedule by schedule, providing the reasoning for each decision. Where redactions are upheld, this is down to their information being included in the schedule of confidential information, and the Tribunal finding no substantial public interest in disclosure (though in some cases they still express puzzlement as to why redaction might be required).
(4) Impact on future procurement? In paragraph 72 the Tribunal consider arguments from the Council and UBB that disclosure would prejudice future procurements, and prevent the Council getting the best deal. They state:
“§72… We cannot accept such a case. Any potential contractor seeking to do business throughout the EU must be well aware of the duties of public authorities in relation to environmental information. We do not accept that they would (or should) complain or change their behaviour in response to a disclosure of information by the Council or any other public authority which was required by the EIR (or indeed FOIA)…”
(5) Intellectual property protection? The council invoked a separate argument for Schedule 33 which covers the sale of electricity generated from the plant. The mechanism by which this is to happen is fairly opaque, and appears to involve as-yet untested deals for ‘power off-take’. The Tribunal note that they were not “…given a very clear explanation of how this was all going to work…” (§212), but that “…Mr Mawdsley [(the council officer responsible)] [hoped] to sell the contents of Schedule 33 to other local authorities.”
The council argued that the Schedule was their IP, “based on copyright , database rights and the law relating to trade secrets.”.
The tribunal dismiss this, and in a damning paragraph note:
“§216. So far as the public interest is concerned, we agree with the Commissioner that, if relevant, it favours the disclosure of Schedule 33. The Council expressly accepts that there is a public interest in transparency about its plans to sell electricity for wider use; in our view it is a weighty public interest. On the other hand, we remain unclear as to how the Council’s or UBB’s negotiating position with third parties will be damaged. As to the wish to protect the confidentiality of legal and technical details that are novel in order to sell them on to other local authorities, even assuming that Mr Mawdsley is not being overoptimistic about the potential for the Council to make money in this way, we do not think that there is a particularly great public interest in the Council being able to commercially exploit a scheme which is apparently designed to avoid the normal regulatory regime.”
I’m not sure to what extend Tribunal decisions set precedents for others – but it seems to me there are strong arguments here that supports the positions that:
- Where contracts are made that commit public money – the public have a right to know the detail of those contracts;
- Contracts need to be treated as a whole, and redactions kept to a minimum;
- Only redactions agreed in advance, and set out transparently in a clear schedule should be allowed;
- A public party cannot claim intellectual property over a negotiated contract text;
Now that we have official access to the substantial majority of the Gloucestershire Incinerator contract, the challenge ahead is to work our what of the damage done by the Council Cabinet and contractors unaccountable actions over the last 18 months can be challenged, and undone. Access to documents is ultimately just one part of a wider open contracting journey.
(C) Other things of note
There are a few other elements of note I jotted down whilst reading through the judgement.
The claim made to council on 18th Feb 2015 that it could cost £60m – £100m to cancel the contract appears to be based on calculations from officers, and/or Ernst and Young which have not been published by the authority (perhaps another EIR or FOIA request will be needed here…). The Tribunal ruling refers in Paragraph 27 to a document from Ernst and Young presented to Cabinet in November 2015. However campaigners reading the unredacted contract cannot find the substantiation for the cancellation costs being so high before the facility is operational. It appears breakage before the plant is in operation could cost substantially less than the break-points once it is up and running – and possibly even lower than the £30m the Council has subsequently committed from reserves to cover shortfalls in the project.
Fighting disclosure has potentially cost the council much more than the hundreds of thousands spent on legal fees. Now that the contract model can be scrutinised, and alternatives explored, it may turn out that delays have led to potential cancellation of the contract
Mr Mawdsley, the council officer who has been pushing the Incinerator contract, comes in for criticism from the Tribunal. In paragraph 73 they note “Mr Peiro’s [UBB staff member] evidence was inevitably likely to be rather partisan, and, although he is an official and was giving evidence on behalf of a public authority, we are afraid we reached the view that Mr Mawdsley’s evidence on behalf of the Council was also rather partisan. We were surprised at the failure of each to attach any great importance to clause 84 and Schedule 23 or to the Transparency Code… We accept the submission of Mr West at para 78 of his final submissions that Mr Mawdsley’s evidence was ‘…so far-reaching as to be unconvincing, in particular in relation to matters such as Access Road Disruption Events”.
I’ve tried, at least in section A and B above to summarise rather than analyse. But, as I’m posting this on a personal blog, if I might here be forgiven a personal and partisan point…
If you are in Gloucestershire and concerned about this – the Tribunal made a good point: elections are a key mechanism to hold the Council to account – and all the Councillors who voted for the Incinerator on the basis of bad information, or secrets known only to Cabinet, are up for re-election on May 4th.
I only discovered this local case when my wife, Rachel, started getting involved in local Green Party conversations, and pointed out the work our Green County Councillor Sarah Lunnon was doing to push for open contracting, and to challenge the secrecy of the Incinerator contract. We were both astonished to see the County Council being so reckless with public resources and our local environment – and to see them so opposed to transparent and accountable politics.
It spurred me into reading as much as I could of the information that was available on the contract – but Rachel has taken it a step further – and is standing as Green Party candidate for Minchinhampton Division in the upcoming County Council elections.
There is ultimately the chance that we could change the balance of power in Gloucestershire – voting out the Tory administration that’s made these reckless decisions – and getting in a progressive coalition who can work to undo the damage. So – if you happen to be local to Minchinhampton, Thrupp or Chalford: please support Rachel. If you live elsewhere in Gloucestershire: make sure you get out and vote on May 4th, and use your vote for a progressive candidate who will commit to open contracting, and to stopping this one wasteful incinerator deal.
And if this is all too parochial… think about the contracts your local authority has signed you up to. Have you looked to see that they really work in the public interest?
[Note – typos in transcription from the original judgement are my own. I’m working from a printed copy, awaiting access to digital copy from the Tribunal website]