Contractor demanded money from Borders council

DOUG COLLIE reports

Scottish Borders Council has been instructed to release more 'confidential' material linked to its disastrous waste management contract with penniless New Earth Solutions Group following a six-month investigation by Scotland's Information Commissioner.

And the Decision Notice from Commissioner Rosemary Agnew reveals for the first time that New Earth's management requested an unspecified sum of money from SBC at some point during the four year partnership which cost taxpayers millions of pounds.

However, no doubt the council will be greatly relieved that details of how much cash was demanded,  the reasons for the request, and whether the money was handed over, are to remain secret for now after they maintained in their submission to Ms Agnew that the sum should not be disclosed even though their former contractors have since crashed out of business with huge unpaid debts.

SBC had also refused to provide details of the lessons learned from the waste management fiasco in response to a Freedom of Information request. Now some of the documentation assembled from the "post-mortem" must be provided by November 28th after Ms Agnew ruled the council had wrongly withheld information.

But so far as the NES cash demand is concerned, the Commissioner's decision notice states: "The Commissioner is satisfied that the information is not required in order to understand any of the lessons learned by the council, and she finds that its disclosure is not required in the public interest".

The FOI request asked for: "Information contained in Council documents, reports, emails and other written correspondence detailing the ‘lessons learned’ from the Council’s unfortunate experience with a contractor who could not deliver either the technology or the funding for the region’s vital modern waste facility at Easter Langlee”.

After refusing the request the council had to supply all of the relevant information to the SIC. But SBC claimed there was no written report detailing the lessons learned. These would be taken forward by staff to be incorporated in future projects.

Ms Agnew's report includes the following reasons given by SBC for keeping the lessons learned information under wraps.

"The Council maintained that, having considered the matter repeatedly, the public interest in withholding the information was so significant that it outweighed the disclosure of the information in this case. The purpose of a “lessons learned” workshop is to ensure that a project can be properly and thoroughly scrutinised with honesty and objectivity. It argued that the most full and frank disclosure and discussion will always take place in circumstances where those participating in that conversation are free to speak honestly, safe in the knowledge that the information will be used for its proper purpose and will not find itself placed in a public environment. 


"The Council submitted that there is a significant public interest in ensuring that where projects have been completed (whether successfully or otherwise), this conversation is able to take place and the fullest rewards of such a conversation are able to be achieved. This way, a public authority can ensure that it is best placed to critically review its own actions, and the public can be assured that such conversations take place. The Council submitted that the public interest in a local body being able to critically review its own actions is substantial, and this interest will be significantly weakened if the content of these conversations find their way directly into the public domain."

Ms Agnew acknowledged it was important that authorities were not deterred from reviewing their actions and decisions (especially in situations which have not had a positive outcome), in order that the knowledge and experience gained from past projects can be utilised in future projects.  The Commissioner considered it was in the public interest for authorities to be able to continually improve their performance in order to increase their efficiency.

However, the FOI requester had indicated he did not require the names of Council officers, where they appeared in the withheld information. The Commissioner considered that if staff names were not disclosed, then it was far less likely that staff would be inhibited from fully engaging in a similar process in the future.

In her ruling Ms Agnew goes on to state: "the Commissioner notes that there is information in section 1.3 of Annex 1 which does not embody formal “lessons” gained from the workshops, but describes the personal reflections and experiences of the staff involved. These comments cannot be seen as organisational learning, but more accurately reflect frank discussions between officers about their own experiences at various times during the project.

"Its disclosure would not be in the public interest: it would not add to public understanding of the Council’s assessment of its overall performance, as the discussions focus on individual experiences. In addition, the Commissioner considers that disclosure of this kind of information may well lead to the harm anticipated by the Council, as officers may not wish to contribute their thoughts so freely in future if they consider that personal reflections and discussions which do not relate to an organisational learning point may be disclosed, even with their names redacted."

But she also writes: " With regard to the remaining content of Annex 1 and Annex 2, the Commissioner notes that both contain organisational “lessons” from the Council’s handling of the NES project.

"The Commissioner considers that disclosure of these “lessons” are in the public interest, as they indicate that the Council has evaluated its handling of the NES project and they demonstrate how this evaluation will be used to improve the management of future waste treatment contracts.  The Commissioner notes that the cancellation of the NES contract led to the Council “writing off” several million pounds of tax payers’ money, and, in the circumstances, she considers that disclosure of the lessons learned during this process is in the public interest.


"The Commissioner finds that the public interest in disclosure outweighs the public interest in maintaining the exception and withholding the information.  Accordingly, she finds that the Council was not entitled to withhold the information under consideration.  She now requires the Council to disclose parts of Annex 1 and 2. The Commissioner will provide the Council with marked up copies of Annex 1 and 2 to indicate what information is to be disclosed."