Law firm scoops up £670,000 of council cash

EXCLUSIVE - by Doug Collie

Brodies, the Edinburgh law firm, were the main financial beneficiaries of the failed Borders waste management contract which has so far cost local taxpayers £1,968,160, Not Just Sheep & Rugby can reveal.

The specialist legal team from Brodies, appointed by Scottish Borders Council to advise on the procurement of a contract said to be worth more than £80 million with New Earth Solutions (NES) - a contract which was terminated in turmoil earlier this year - collected fees totalling £679,316 from the local authority.

Information obtained via a Freedom of Information request also shows that D & P Management, the company run by Barry Phelps, the council's chosen procurement expert, was paid £302,803. Between them, Brodies and D & P Management accounted for almost half the money committed to the costly and ultimately disastrous venture.

Mr Phelps was no longer working at SBC when councillors radically amended the contract he helped to negotiate with NES to include an incinerator.

The Borders should have had a state-of-the art treatment facility at Easter Langlee on the outskirts of Galashiels by now. But there is nothing to show for the huge sums spent and the time devoted to the project, including SBC's own internal staff costs, stated to be £356,403.

Yet council leader David Parker told the Border Telegraph in March, not long after the contract with NES collapsed because of technological and funding issues: "Given the contractual obligations with NES, the money was used both appropriately and, we believe, effectively."

Others may take a different view, and it is believed there will be further costs related to the closing down of the contract. New Earth has refused to say how much the group spent over the four years of their contract with SBC which was supposed to last 24 years.

Brodies, in their annual review for 2011, said Scottish Borders Council had taken a long-term strategic view to deal with the problem of dealing with residual waste. The council had undertaken a rigorous process to select a private sector provider to treat the region's mixed municipal waste and manage its green waste and dry mixed recyclates.

Central to the strategy would be a new facility incorporating the latest mechanical and biological treatment (MBT) technology that would recycle and recover materials from the waste stream and ultimately lead to significant volumes of residual waste being diverted from landfill, thereby providing environmental benefits while minimising the Council's exposure to landfill tax and contributing towards it meeting the requirements of national and European legislation.

So where does the collapse of the project leave the council's waste strategy?

Here's how Brodies described their involvement in the Borders scheme.

"Our waste, environment and contract specialists advised on all aspects of the transaction, including waste law and policy, procurement, contract drafting, contract negotiations, oversight of the competitive dialogue process, preparation of the documentation for the call for final tenders, the legal and commercial evaluation of final tenders received and clarification and finalisation of all documents signed at completion."

The law firm's review also included the following contribution from the council's project manager: "Brodies' expertise across a whole range of areas has been invaluable in supporting us to achieve our goal. We were particularly impressed with the speed and efficiency which enabled the Council to move from preferred bidder appointment to contract close in only four months."

The list released under FOI shows three firms of technical, financial and project management consultants all picked up six-figure sums.

Here is the full breakdown of the various payments associated with the Easter Langlee scheme:

Company	Specialist Area	£
Brodies	Legal	679,316.51
Faculty Services	Legal	6,450.00
McGregors LLP	Legal	1,200.00
SLR	Technical	184,345.34
Holequest	Technical	8,566.85
Envirocentre	Technical/Environmental	32,744.02
Nevin Associates	Financial	143,401.25
QMPF LLP	Financial	2,750.00
D&P Management	Procurement	302,803.47
Willis	Insurance	10,600.00
SOLACE	Project Management	92,475.00
Practicus	Project Management	116,042.20
Project office Supplies		31,062.59
Internal Staff		356,403.39
		1,968,160.62

Did "due diligence" trip achieve its objectives?

A large collection of environmental data linked to the pioneering waste incinerator on which a similar facility for the Scottish Borders was to have been based shows there were many outstanding unresolved technological issues when a Borders delegation inspected the plant last October.

The 16-strong deputation from Scottish Borders Council made a two-day "due diligence" trip to the New Earth Solutions processing centre at Avonmouth, Bristol, presumably in a bid to satisfy themselves and the residents they serve that the revolutionary Energy from Waste incinerator was performing to a high standard.

After all the council had so much faith in the so-called NEAT (New Earth Advanced Technology) system that it signed up for an identical complex to be developed at Easter Langlee in October 2012, more than six months before the prototype Avonmouth plant had even generated its first megawatt of electricity.

Unfortunately the entire concept had to be scrapped a few months after the visit to Bristol due to "technological and funding issues" at a cost to local taxpayers of at least £2 million. But SBC has yet to provide the public with a detailed explanation for the venture's abject failure.

Those who are concerned over this horrific waste of public money can only speculate what took place at last October's summit between SBC's finest and the executives of New Earth Solutions and its subsidiary New Earth Solutions (Scottish Borders) Ltd, the local authority's appointed contractors.

But Not Just Sheep and Rugby has been given access to Environmental Agency paperwork on the Avonmouth plant during 2013 and 2014 together with a confidential 38-page report on the incinerator prepared by New Earth themselves.

The Environment Agency (EA) material includes reports of contraventions of the operating permit. There are also copies of inspection reports and audits which reveal a range of problems, including an ongoing issue with bottom ash, a by-product of the incineration process.

Another document shows the dates of unauthorised emissions from the facility. The total number recorded is 191 with some multiple unauthorised emissions on certain dates.

 

New Earth's own report reveals that the amount of bottom ash being produced at the plant actually increased throughout 2014. The ash is disposed of in a local landfill, 17 miles from the incineration site.

There appears to have been 17 incident and inspection reports included on EA files during the course of 2013 and a further 21 instances logged in 2014. It should be remembered that all of these reports were generated long after SBC deemed NEAT to be the best solution in the council's drive to divert refuse from landfill.

Was the delegation shown the EA documentation, which is available on the agency's register, and if so what did they make of it? Or did they even ask to see it? The various reports are too numerous to publish here, but this one selected at random might have prompted the SBC group to ask questions.

9-5-2014

"The operator's Accident Management Plan (AMP) was audited. The current issue was version 3, dated 14/03/14. It was structured around the impact of an incident rather than around the risks of an activity. While it identified control measures, it did not estimate risk nor attempt to prioritise certain activities as being more risky than others.

.... An indicator of particular concern (seen on 09/05/14) was that a fire extinguisher was recorded as having been used to put out a fire on the Telehoist in the area where refuse derived fuel is stored. This was recorded as a near miss. It had not been investigated. We had, therefore, a written record that a small fire had taken place in an area where many tonnes of combustible material are stored. We believe that this shows there is a reasonably foreseeable risk of a major fire. Accordingly, the failure to plan adequately for accidents is a category 2 non-compliance with permit conditions. We also looked at actions arising from the AMP. Training and maintenance are necessary to implement control measures. Neither had been adequately carried out, and there are no written procedures to achieve adequate performance. Also, the maintenance that had been carried out was not adequately documented, in the sense that the operator was unable to locate the documentation to show that certain tasks had been completed."

It seems that despite all of the above (and much more besides) the Avonmouth facility passed SBC's "due diligence" test with flying colours.

Oversight sees hundreds of council staff posted missing

by EWAN LAMB

The mystery surrounding the disappearance of hundreds of Borders local government staff from official Scottish Government tables may have been solved following an intervention by statisticians in Edinburgh.

It is important that Scotland's local authorities do not issue inaccurate and misleading information for public consumption. But we recently told you how SBC managed to issue three entirely different figures - 5,700, 6,421, and 6,131 - on the same topic within a matter of a few weeks.

The numbers all relate to the number of employees on the council payroll in the last three months of 2014. The confusing statistics were spotted after the headcount figure of 5,700 was published by the SNP Government on their Public Sector Employment website in March along with information on Scotland's other 31 councils..

But doubts as to the accuracy of the Borders data soon emerged as a vastly different figure had been supplied to a Freedom of Information requester in January 2015. The council's FOI team claimed there were 6,421 paid employees on the books in their response.

Then, within days of the release of those Scottish Government charts officials at SBC provided councillors with a report on Manpower which claimed the actual jobs total was 6,131, a reduction of 70 from the corresponding figure of 6,201 in 2013.

It appeared there was an urgent need for clarification, and after the highly confusing sets of data were referred to the public employee counters in the government's Analytical Services Division, SBC was asked for an explanation so that civil servants might "understand the reasons for any discrepancies in the headcount figures".

Scottish Borders Council has now advised the labour statistics unit that their quarterly returns have, in error, not been including information for casual/relief employees who were paid during the survey reference period. So it seems SBC had no fewer than 1,121 temporary workers on the payroll at the end of 2014, according to the gap between the figure they sent up to Edinburgh and the one they gave to the FOI requester. The number of temps drops to 831 when the figures given to councillors is set alongside the official return.

SBC is now said to be working to produce a revised set of statistics to inform the public sector employment publication. It is understood the council has advised the FOI requester that the 6,421 figure was incorrect and have provided an amended figure.

It seems SBC somehow omitted any reference to casual workers and relief staff when communicating with the Scottish Government, but managed to include hundreds of temps when answering questions from the general public.

The discrepancy in the council's employment statistics could well stretch back all the way to 2010. They told the data collectors in the final quarter of that year they had 5,700 employees. But in a response to anothe FOI request the local authority gave a headcount total of 7,135, suggesting they had 1,435 casual staff working for them at that time.

The Labour Market Statistics team say there is nothing to suggest the equivalent statistics for other Scottish councils might be inaccurate.

"We do rely on councils supplying accurate information and engage regularly with them to that end. For example, in late May we have invited all 32 authorities to take part in a data provider event at which we will discuss the collection of these data and the application of the guidance."

SBC and the bank of Heinrich Himmler

DOUG COLLIE reports

Information posted on an internet website shows Scottish Borders Council arranged a series of loans with overseas financial institutions more than a decade ago, including two separate advances amounting to £8 million from Dresdner, the bank of choice for the infamous Nazi commander Heinrich Himmler.

Details of SBC's eleven so-called LOBO (Lender Option Borrower Option) transactions are contained in a Freedom of Information response from SBC to Jamie Griffiths, who has lodged similar requests with local authorities throughout the United Kingdom. A number of councils have told him they have considerably more tied up in LOBOs than the £43 million in the Borders portfolio.

According to a number of financial experts and pundits LOBOs have the potential to become highly controversial, following in the footsteps of PPP and PFI, the financial set-up which saw hundreds of schools, hospitals and other public buildings constructed with large interest payments due for up to 40 years. Under the LOBO loan system lenders can increase the interest rate charged while the borrower can pay off the loans earlier than scheduled if he does not like the proposed interest rate changes.

It is said LOBOs were frequently arranged by specialist brokers who were able to command lucrative fees. This method of securing finance for local authorities appears to have been popular in the early years of this century, and the loans were used in a bid to reduce interest payments by switching debt from the Public Works Loans Board (PWLB), the normal source of loans for council finance officials.

Mr Griffiths' response from SBC has been published on the Whatdotheyknow website. The information is not yet available on the council's own Freedom of Information web pages which have not been updated since January.

The post reveals the council concluded six separate loans with the Franco-Belgian bank Dexia between 2004 and 2006 for sums ranging from £3 million to £5 million and adding up to £24 million in total.

It is also a matter of record from other FOIs that between 2006 and 2008 SBC treasury policy resulted in short-term deposits amounting to more than £7 million being lodged with Dexia, at a time when the council was also placing millions of pounds in risky Icelandic banks.

In 2008 Dexia received taxpayer bailouts of six billion Euros and later became the first major casualty of the 2011 European sovereign debt crisis. Part of the bank was bought by the Belgian Government and now exists under a new name - Belfius.

Two separate loans of £4 million each with the German bank Dresdner were set up in early 2004. The history books show the bank, founded in the 1870s, took part in the Third Reich's policy of confiscating Jewish wealth as well as financing concentration camps, including Auschwitz.

Dresdner was bought by rival institution Commerzbank for almost ten billion Euros in 2008.

Two more LOBOs for £2 million and £3 million respectively were arranged with the European Central Bank and Dusseldorf-based EAA with the remaining loan for £6 million provided by Barclays.

Mr Griffiths asked SBC who recommended each LOBO to them. But the council replied "Not Known" in each of the eleven cases. The requester also asked for copies of the original, signed LOBO agreements, but was told he was only entitled to information about the transactions under the Freedom of Information legislation, and not documentation.

However, Mr Griffiths has been supplied with full copies of LOBO agreements by other councils and has asked SBC to review their decision to withhold the information.

In eight of the eleven LOBOs listed by the council the interest rate has increased since the arrangements were made.

There are very few references to LOBOs in the council's online documents. But in the local authority's annual audit report for 2005/6 under the heading  Debt Restructuring it states: "The Council carried out two debt restructuring exercises during the period to 31 March 2006. In each of the transactions a number of fixed rate, (PWLB) loans were redeemed and replaced by a single Lender Option Borrower Option (LOBO) loan agreement. In total a premium of £2.8 million was paid to the PWLB in order to complete the loan redemptions. This restructuring was undertaken to minimise interest costs."

The annual interest payments on all council loans, including those with the PWLB and with other parties was £7.246 million (net) in 2007/8. But in 2013/14 the net charge had risen to £11.426 million.

Council's incineration project 'half-baked'

by OSSIE SHEARER

The national coordinator of an anti-incineration campaign group describes Scottish Borders Council's plans for a Renewable Energy Facility at Easter Langlee as half-baked, and believes the scheme drawn up by contractors commissioned by the council had not been properly thought through.

This damning critique comes from the UK Without Incineration Network (UKWIN) which opposes the development of waste treatment facilities that involve the large scale burning of waste for conversion to electricity and heat.

It has already been claimed SBC should have gone ahead with a  conventional plant which received an operating permit from the Scottish Environment Protection Agency (SEPA) almost three years ago, but which has not been delivered.

Instead the council and New Earth Solutions (Scottish Borders) Ltd took a high-risk joint decision in October 2012 to amend their contract to allow the energy from waste plant to be built at the same time as the rest of the facility.

It has now been disclosed that the venture soon ran into trouble over unresolved technical and environmental issues. New Earth could not convince SEPA that the agency should sanction major variations in the conditions attached to the permit for the Easter Langlee project.

The £27 million scheme collapsed in disarray earlier this year when the two parties terminated their 24-year contract after just four years, and NES withdrew its application to SEPA. Files of correspondence released by SEPA under Freedom of Information requests have revealed the sheer scale of the unresolved issues surrounding the controversial, untried technology.

Email exchanges between SEPA and NES have been passed to Shlomo Dowen, the UKWIN national coordinator, for comment.

Mr Dowen told Not Just Sheep & Rugby:"The SEPA emails and letters certainly show the Agency had plenty of questions for the applicant. The Agency's healthy scepticism regarding the so-called End of Waste status of purified synthetic gas from incineration could be a genuine barrier to any other similar proposals coming forward."

He claimed the inadequacy of the NES environment permit application had resulted in SEPA posing questions, the answers to which rather than satisfying SEPA only resulted in more questions, indicating that the proposals had not been properly thought through by the applicant.

"The Freedom of Information response indicates that SEPA was not satisfied that the proposal would operate as claimed in relation to emissions and noise", said Mr Dowen. "It appears the applicant did not have a clear idea of what it was they would actually be treating at their plant and that the proposal was therefore seen as half-baked."

According to Mr Dowen, this indicated the developer would need to build up a successful track record, get their heads round what it was they were actually proposing, and come up with a coherent plan for addressing the issues identified by SEPA before they could proceed.

Environment agency files have a story to tell

EXCLUSIVE

A collection of 85 files containing copies of more than 700 pages of emails and letters shows the technology which was to be deployed at the ill-fated Easter Langlee Renewable Energy Facility had failed to allay the concerns of the Scottish Environment Protection Agency two years after Borders councillors gave it the thumbs up.

The information, released by SEPA following a Freedom of Information request, suggests Scottish Borders Council must now explain publicly why it decided to proceed with the untried system for converting domestic waste into heat and power in October 2012.

The failure to deliver the project - it was abandoned earlier this year - has cost council taxpayers at least £2 million while at the same time delaying a strategy to divert rubbish from landfill by several years.

SBC has already refused to answer questions concerning the risk assessments carried out for or on behalf of the council before awarding the contract for the £27 million treatment facility to New Earth Solutions (Scottish Borders) Ltd, part of the NES Group. They claimed that to disclose the information would cause substantial prejudice to commercial interests.

The local authority has also cited "commercial confidentiality" as the reason for refusing to release documents showing the steps it took to satisfy itself that New Earth had the technology and funding to carry out the project prior to an application for a permit variation to SEPA in April 2013.

But now the SEPA files reveal the host of unresolved issues - many of them concerned with emissions and noise levels - which were the subject of prolonged and detailed discussions between June 2013 and March 2015 when NES finally withdrew their application.

As previously reported, a large delegation of councillors and officers from SBC returned from a two day trip to an NES plant at Avonmouth, Bristol on October 2 & 3 2014 convinced they were "on the right track" and forecast the Galashiels facility would hopefully be up and running by mid-2017. Details of the visit were reported in the Border Telegraph on October 8.

That date is extremely significant as, according to the SEPA files, it was the day on which the agency informed New Earth it was not in a position to agree a so-called End of Waste application for Easter Langlee.

A SEPA officer wrote: "We are of the opinion that the information provided to date does not provide adequate demonstration that either the gases have been purified so they are no longer a waste prior to their incineration, or that they can cause emissions no higher than those resulting from burning natural gas. This means that at the present time we are unable to progress the determination of the Renewable Energy Facility (REF) part of the application for substantial variation [of the Pollution Prevention Control permit) based on the current design."

The message goes on to list six separate "key points" which New Earth Solutions must resolve. These are detailed technical issues, and reference is made to "little or no data" having been provided.

SEPA's email offers the applicants the opportunity to withdraw the REF part of the application "and make a new application when the information identified above is available".

This would have allowed NES to proceed with the development of the urgently needed Mechanical Biological Treatment (MBT) plant at Galashiels, a facility which had received all of the necessary certificates from SEPA in 2012 and which had the capability of reducing Borders refuse going to landfill by 80%.

But in a reply on October 9 New Earth told SEPA: "We would like to continue with the variation as submitted. At this stage we would not be looking to withdraw the energy facility part of the variation and re-submit".

Presumably those responsible for the project at Scottish Borders Council were fully aware of the serious unresolved technical issues and the refusal of NES to accept SEPA's offer at the time they were reassuring the press that everything was in order with their multi-million pound waste facility.

COMING SOON: EXPERT SAYS WASTE PROJECT WAS "HALF-BAKED".

Inaccurate and misleading? We may never know

A damning report which claims Scottish Borders Council acted irresponsibly and demonstrated gross incompetence in losing at least £2 million of taxpayers' money on the abandoned waste management facility at Galashiels has been branded inaccurate and dismissed as misleading in a statement from the local authority.

The report, compiled by retired journalist and Borders council taxpayer Bill Chisholm, has been submitted to Audit Scotland with a request for an inquiry. It tells how successive administrations at Newtown St Boswells have failed to provide the area with a waste treatment plant capable of diverting rubbish from landfill.

Chisholm carried out his own detailed investigation into the fiasco which ended two months ago when councillors decided in private session to walk away from a 24-year contract with their contractors New Earth Solutions Group (NES).

The public was told £2 million spent on the "reckless venture" would be written off without any explanation as to where the money went. And when Chisholm lodged a Freedom of Information request with SBC asking for details of risk assessments made prior to the contract he was told these were being withheld on grounds of commercial confidentiality.

In the course of his investigation Chisholm contacted NES, but they also refused to give him any details of how much the broken contract had cost the group or discuss the reasons why the £27 million Easter Langlee project became financially and technologically bankrupt only weeks after a large delegation from SBC declared themselves delighted following a visit to NES's "sister plant" near Bristol.

The report claims the project's failure hinged on a crucial decision taken in October 2012 to try to develop two separate phases of the waste facility at the same time even though the technology for a so-called Advanced Thermal Treatment (ATT) plant had not been tried and tested.Instead, SBC and NES should have gone ahead with phase one of the scheme - as agreed in the original contract - and this would have allowed the Borders to cut its landfill rates by 80%.

"This entire saga has been shrouded in secrecy, and my attempts to uncover the facts repeatedly ran into difficulty because both the council and the company they hired wanted to keep everything under wraps", Chisholm told us. "As I say in the report the people of the Borders deserve more than that. The elected members and officers who presided over this debacle should be identified and held to account."

But after copies of the report were given to local newspapers and media this week the council hit back although their brief statement was somewhat short on detail.

 A Scottish Borders Council spokesperson said: “The Council has considered the letter and report by Mr Chisholm and finds its contents not accurate and therefore its conclusions misleading. As such, the Council will not be responding to it.

“The Council has acted properly and appropriately throughout the waste treatment project and will continue to do so.

“Given the contractual obligations with New Earth, all monies spent were expended both appropriately and we believe effectively.

“As part of the closing down of this project, like any other, a lessons learnt exercise will be completed.”

Asked about the council's assertion that his report was both inaccurate and misleading, Chisholm commented: "It would be helpful to have a list of the inaccuracies and some pointers as to the misleading sections of the 10-page document. But no doubt SBC is unable to go into such detail on grounds of commercial confidentiality."

Langlee's lethal mixture of hazardous gases

EXCLUSIVE by DOUG COLLIE

The rotting rubbish beneath the Borders landfill site at Easter Langlee has sent more than eleven million kilograms of harmful methane gas into the atmosphere during the last ten years, according to figures compiled by Not Just Sheep and Rugby from Scottish Environment Protection Agency files.

It is worth bringing the alarming statistics to public attention at this time in the wake of last week's revelations that traces of the deadly greenhouse gas from the Galashiels waste tip had halted development on the largest new housing project in the Borders.

News reports in the local press described how during recent borehole investigations on the perimeter of the 500-house development site scientists had discovered concentrations of methane and carbon dioxide.

Scottish Borders Council has failed to deliver a waste treatment facility at Easter Langlee to cut the amount of trash going to landfill despite various initiatives since the project first received planning permission in 2002. And it could be at least three or four years before a plant can be commissioned, approved and constructed.

Meanwhile the site continues to emit a lethal mixture of methane, CFCs, HCFCs and methyl chloroform. Methane is considered to be among the worst of the greenhouse gases. Its global warming potential is 21 times greater than carbon dioxide. To make matters worse  the Greenhouse Gas Inventory is about to uprate the potency of methane from 21 times to 25 (possibly 26) that of CO2.

So what is the precise nature of Easter Langlee's contribution in terms of possible environmental damage? Quite considerable, it would appear.

The reporting threshold for methane - the level at which local authorities and other waste disposers must notify SEPA about the size of emissions - is 10,000 kilograms per annum.

In 2013 alone Easter Langlee's annual methane emissions total was 300,000 kg, 30 times above that reporting threshold. But that was one of the lower methane outputs from the landfill site. In 2004, 2007 and 2008 the figure exceeded two million kilograms on each occasion with the million kilogram mark exceeded by some distance in 2005 and 2006. The annual average during the last decade has been 1.1 million kilograms.

The SEPA information site informs us that methane has a "life" of ten years. It adds: "On a local scale a build-up of methane poses an explosion hazard which can result in evacuation over old landfills or mines. The UK's biggest source of methane is from rotting rubbish in landfill."

Meanwhile Easter Langlee's production levels of chloroflurocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs) must also be a cause for considerable concern.

The reporting threshold for these substances, with their potential to destroy the ozone layer, is just one kilogram per year. The SEPA records show varying levels of CFCs being emitted at Langlee from 94.1 kg in 2007 down to 11.7 kg in 2009. The most recent figure was 27.5 kg in 2013.

The HCFC column varies from 39.8 kg in 2007 to 12.2 kg in 2009 with a 2013 return of 26.5 kg.

To complete the picture, emissions of methyl chloroform with a potential to contaminate water courses and accumulate in aquatic life, were above the reporting threshold of 10 kg per annum in six out of the last seven years with the highest reading in 2007 at 43.3 kg.

One environmental expert told us: "From these statistics it is abundantly clear that the Borders needs to get its waste management sorted out. The region should already have a facility capable of diverting significant amounts of rubbish from landfill which would also bring down these emission levels considerably."

FOOTNOTE: It has been estimated a cow produces an average of 100 kilograms of methane in a year. So it would require a herd of 11,000 cattle to match Easter Langlee's average output of 1.1 million kilograms of methane.

Council back on Information Commissioner's naughty step

by DOUG COLLIE

The woeful shortcomings of Scotland's Freedom of Information system have been laid bare yet again after Scottish Borders Council found itself in the 'dock' and unable to explain why it incorrectly told a requester it did not have the paperwork he had asked for.

It is only a matter of weeks since we told you the story of Roy Mackay, the gentleman who had notched up no fewer than seven victories against the council over it's various failures to supply him with proper or timeous responses to FOI requests. Better make that eight following yet another investigation by Scottish Information Commissioner (SIC) Rosemary Agnew.

This time the matter was so serious that the SIC was moved to "record her disappointment" at the Council's handling of Mr Mackay's request. And that is probably the most powerful punishment Ms Agnew has at her disposal in a system which allows public authorities to abuse FOI at will. Many of them continue to treat Freedom of Information with contempt.

In the case under discussion Mr Mackay asked SBC for information relating to searches carried out in relation to previous requests and decisions by the Commissioner.

The council told him it did not hold the requested information. But after Mr Mackay referred the case to the SIC the council notified Ms Agnew that it did have the documentation falling within the scope of the request.

A written decision from the Commissioner reveals that initially SBC did not even bother responding to Mr Mackay which meant he had to write again to request a review. But again there was no response, and it was only after the referral to Ms Agnew that he was told the local authority did not have the information he wanted. That was in July 2014.

However a persistent Mr Mackay had his case reopened by the SIC in January when he made it clear he did not accept the council's version. And after an investigator from SIC started an inquiry in February SBC confessed that, following further investigation, it had suddenly located information of interest to Mr Mackay.

Ms Agnew's report on the case says: "The Council explained that, at the time of Mr Mackay's request, it did not use search sheets or formally recorded searches. Mr Mackay's requests had largely been discussed verbally by council officers, and the relevant information which could be located was therefore limited. It could not explain why the review outcome of July 2014 informed Mr Mackay that no information was held.

"The council explained that members of staff who had dealt with Mr Mackay's request had since left its employment, with the result that any relevant information held within their personal email accounts had been permanently deleted".

The SIC said she had a number of concerns relating to the handling of Mr Mackay's request. In her rebuke, Ms Agnew states: "It is the council's duty to ensure that it's processes for recording and retrieving relevant information are resilient and can withstand changes in key personnel. The Commissioner will be monitoring the situation to ensure the council has robust and effective systems in place to deal with requests received."

She acknowledged SBC's performance in relation to Mr Mackay's request appeared to be in stark contrast to the initial improvements noted following special measures taken by her predecessor Kevin Dunion in 2009/2010 at SBC.

Mr Dunion thought it necessary to carry out a so-called on-site practice assessment at the Borders authority because it was failing to comply with FOI laws.

When the Commissioner's intervened SBC had only complied with the 20 working days allowed for responding to FOI requests in a dismal 71% of cases. However, after Mr Dunion's pep talk and improvements in staff training, systems and guidance for the public the council's performance shot up to 99.7% over a five month period in 2010.

It seems the lessons learned from the practice assessment were soon forgotten. This latest ticking off from Ms Agnew may result in a better service for requesters. But for how long? While the Freedom of Information Scotland Act continues to exist without meaningful sanctions and stiff penalties the regime remains open to widespread abuse.