DOUG COLLIE on a significant defeat for council secrecy
Scottish Borders Council has been ordered to provide a freedom of information requester with 'confidential' information linked to its disastrous waste management contract with New Earth Solutions, a liaison which cost local council taxpayers millions of pounds.
In a newly published decision notice, the Scottish Information Commissioner Rosemary Agnew has rejected the local authority's claims that the release of allegedly commercially sensitive information to a Freedom of Information (FOI) requester would seriously compromise NES's business interests. The company was unable to develop a multi-million pound waste treatment plant at Galashiels on both technical and financial grounds, a failure requiring the deal to be torn up.
Ms Agnew's written report reveals that SBC was so determined to keep information under wraps that they did not even provide the withheld documentation to the Commissioner when her office requested it as part of the investigation into the requester's complaint.
Instead the council referred Ms Agnew to concerns it had previously raised with regard to the information in
question being subject to a confidentiality clause in its flawed and now abandoned contract with NES. Eventually they did accede to the Commissioner's legitimate request.
An experienced expert in FOI process and regulation told Not Just Sheep & Rugby: "How ludicrous is that? Has this local authority never been through a FOI investigation before?"
The request for disclosure - one of four concerning various issues surrounding the doomed contract - asked why SBC had found it necessary to stand as guarantor for its contractor New Earth Solutions (Scottish Borders) Ltd for up to £315,000 when the firm applied to the Scottish Environment Protection Agency (SEPA) for an operating certificate. The request was refused twice before an application was lodged with SIC for a decision.
In its submissions to Ms Agnew, The council argued that the disclosure of the withheld information would be likely to cause substantial harm to the legitimate economic interests of NES. The council noted that competitors of NES could utilise this intelligence to NES’s disadvantage.
SBC also suggested that disclosure of the withheld information could have an influence on any future
business partners of NES. In either case, the Council argued that the footing of NES in a
commercial setting was likely to be weakened by disclosure of the withheld information into the
During the course of the SIC investigation, SBC agreed to release parts of a confidential report prepared for councillors in 2012 when they agreed to approve the SEPA bond on behalf of NES.
But in dismissing the council's claims, the commissioner said she had considered all of the arguments carefully, but was not persuaded that disclosure of the withheld information would cause, or be likely to cause, substantial harm to NES.
Ms Agnew's report explains how the council had refused to disclose part of a sentence (amounting to one line of text) from the committee report , arguing that disclosure would prejudice substantially NES’s legitimate economic interests.
The council commented that the sentence contained information giving a clear indication of the financial health of NES.
But the decision report states:"The Commissioner notes that the information dates from March 2012, some three years before the request for information. It is therefore difficult to see how
disclosure of the information, three years on, could cause substantial prejudice to NES’s
"Since March 2012, NES has submitted two sets of annual accounts to Companies House which clearly contain information on its “financial health”. These annual accounts are publicly available. Given this, the Commissioner finds it difficult to accept that the withheld information would in any way dissuade future business partners from working with NES. Neither is she persuaded that disclosure of this information would enable competitors to take advantage of NES, given its age and the lack of detail."
SBC has until January 15 to provide the requester with the redacted single sentence. Separate investigations into the three allied FOI requests - all of them refused or partially refused by the council - are ongoing with decisions expected some time in the future.