[Summary: The Information Commissioner’s Office has upheld an appeal against continued redaction of key financial information about the Javelin Park Incinerator Public Private Partnership (PPP) project in Gloucestershire]
The Story So Far
I’ve written before about controversy over the contract for Javelin Park, a waste incinerator project worth at least £0.5bn and being constructed just outside Stroud as part of a 25-year Public Private Partnership deal. There’s a short history at the bottom of this article, which breaks off in 2015 when the Information Commissioners’ Office last ruled against Gloucestershire County Council (GCC) and told them to release an unredacted copy of the PPP contract. GCC appealed that decision, but were finally told by the Information Tribunal in 2017 to publish the contract: which they did. Sort of. Because in the papers released, we found out about a 2015 renegotiation that had taken place, meaning that we still don’t know how much local taxpayers are on the hook for, nor how the charging model affects potential recycling rates, or incentives to burn plastics.
In June last year, through FOI, I got a heavily redacted copy of a report considering the value for money of this renegotiated contract, but blacking out all the key figures. This week the Information Commissioner upheld my appeal against the redactions, ruling that GCC have 35 days to provide un-redacted information. They may still make their own appeal against this, but the ICO decision makes very clear that the reasoning from the 2017 Information Tribunal ruling holds firm when it comes to the public interest in knowing salient details of original and renegotiated contracts.
The Story Right Now
For the last two weeks, Gloucestershire resident Sid Saunders has been on hunger strike outside the county’s Shire Hall to call for the release of the full revised contract between Gloucestershire County Council and Urbaser Balfour Beatty. This is, to my knowledge, unprecedented. It demonstrates the strength of feeling over the project, and the crucial importance of transparency around contracts in securing public accountability.
GCC are already weeks overdue responding to the most recent FOI/EIR request for the latest contract text, and continue to stonewall requests for even basic details, repeating discredited soundbites about potential savings that rely on outdated assumptions about comparisons and high waste flows.
On Wednesday, Sid and other local activists staged a dignified silent protest at the meeting of GCC Cabinet, where public and councillor questions on an air quality agenda item had unconstitutionally been excluded.
Tomorrow we’ll be heading to Gloucester in support of Sid’s continued campaign for information, and for action to bring accountability to this mega-project.
It’s against this backdrop that I wanted to draw out some of the key elements of the ICO’s decision notice, and observations on GCC responses to FOI and EIR requests.
Unpacking the decision notice
The decision notice has not yet been published on the ICO website, but I’ve posted a copy here and will update the link once the ICO version is online.
The delays can’t stay
It is notable that every request for information relating to Javelin Park has been met with very delayed replies, exceeding the statutory limits set down in the Freedom of Information Act (FOIA), and the stricter Environmental Information Regulations (EIR).
The decision notice states that the “council failed to comply with the requirements of Regulation 5(2) and Regulation 14(2)” which set strict time limits on the provision of information, and the grounds for which an authority can take extra time to respond.
Yet, we’re seeing in the latest requests, that GCC suggest that they will need until the end of June (which falls, curiously, just days after the next full meeting of the County Council) to work out what they can release. I suspect consistent breaches of the regulations on timeliness are not likely to be looked on favourably by the ICO in any future appeals.
The information tribunal principles stand
The Commissioners decision notice draws heavily on the earlier Information Tribunal ruling that noted that, whilst there are commercial interests of the Authority, and UBB at play, there are significant public interests in transparency, and:
“In the end it is the electorate which must hold the Council as a whole to account and the electorate are more able to do that properly if relevant information is available to all”
The decision note makes clear that the reasoning applies to revisions to the contract:
Even with the disclosures ordered by the Tribunal from the contract the Commissioner considers that it is impossible for the public to be fully aware of the overall value for money of the project in the long term if it is unable to analyse the full figures regarding costs and price estimates which the council was working from at the time of the revised project plan.
going on to say:
The report therefore provides more current, relevant figures which the council used to evaluate and inform its decisions regarding the contract and it will presumably be used as a basis for its future negotiations over pricing and costs. Currently these figures are not publicly available, and therefore the public as a whole cannot create an overall picture as to whether the EfW development provides value for money under the revised agreement.
As the World Bank PPP Disclosure Framework makes clear, amendment and revisions to a contract are as important as the contract itself, and should be proactively published. Not laboriously dragged out of an authority through repeated trips to information tribunals.
Prices come from markets, not from secrets
A consistent theme in the GCCs case for keeping heavy redactions in the contract is that disclosure of information might affect the price they get for selling electricity generated at the plant. However, the decision notice puts the point succinctly:
Whilst she [the Commissioner] also accepts that if these figures are published third parties might take account of them during negotiations, the main issue will be the market value of electricity at the time that negotiations are taking place.
As I recall from first year economics lectures (or perhaps even GCSE business studies…): markets function better with more perfect information. The energy market is competitive, and there is no reason to think that selective secrecy will distort the market or secure the authority a better deal.
(It is worth noting that the same reasoning, hiding information to ‘get a better deal’ seems to be driving the non-disclosure of details of the £53m of land the authority plan to dispose of – again raising major questions about exactly whose interests are being served by a culture of secrecy?).
Not everything is open
The ICO decision notice is nuanced. It does find some areas where, with the commercial interest of the private party invoked, public interest is not strong enough to lead to disclosure. The Commissioner states:
These include issues such as interest and debt rates and operating costs of UBB which do not directly affect the overall value for money to the public, but which are commercially sensitive to UBB.
This makes some sense. As this decision notice relates to a consultants report on Value for Money, rather than the contract with the public authority, it is possible for there to be figures that do not warrant wider disclosure. However, following the precedent set by the Information Tribunal, the same reasoning would only apply to parts of a contract if they had been agreed in advance to be commercially confidential. As Judge Shanks found, only a limited part of the agreement between UBB and GCC was covered by such terms. Any redactions GCC now want to apply to a revised agreement should start only from consulting contract Schedule 23 on agreed commercial confidential information.
GCC have either 28 days to appeal the decision notice, or 35 days to provide the requested information. The document in question is only a 29 page report, with a small number of redactions to remove, so it certainly should not take that long.
Last time GCC appealed to a Tribunal in the case of the 2013 Javelin Park Contract they spent upwards of £400,000 of taxpayers money on lawyers*, only to be told to release the majority of the text. Given the ICO Decision Notice makes clear it is relying on the reasoning of the Tribunal, a new appeal to the tribunal would seem unlikely to succeed.
However, we do now have to wait and see what GCC do, and whether we’ll get to know what the renegotiated contract prices were in 2015. Of course, this doesn’t tell us whether or not there has been further renegotiation, and for that we have to continue to push for proactive transparency and a clear open contracting policy at GCC that will make transparency the norm, rather than something committed local citizens have to fight for through self-sacrificing direct action.
*Based on public spending data payments from Residential Waste Project to Eversheds.