No justification for council cover up, Commissioner rules

by EWAN LAMB

Scottish Borders Council has been told in no uncertain terms there is strong public interest in understanding what steps it took to ensure its disastrous waste management contract which cost taxpayers at least £2.4 million was "robust".

Rosemary Agnew, the Scottish Information Commissioner (SIC), has handed down a wide ranging decision which instructs SBC to disclose the entire contents of five reports which they had been determined to keep secret or at least heavily censored.

The documentation had been requested under Freedom of Information, but the local authority repeatedly refused applications, claiming publication of financial and technological material about their contractors New Earth Solutions Group (NESG) would damage that company's commercial interests and hand advantages to its competitors.

However, following nine months of intensive investigations by Ms Agnew's staff, it was discovered that much of the information withheld from the five reports related not to NESG and its technological or financial assets, but to the council's own financial or administrative matters.

"That one paragraph in Ms Agnew's decision notice appears to point to a deliberate cover up by SBC over a considerable period of time", was how one local government expert summed up the situation for us.

And the council's stance must have been considerably weakened and made to look somewhat ridiculous when SIC's investigating officer found that some of the withheld information had been published on the internet.

In a submission to SIC, the council said the withheld information was "commercial or industrial in nature". It related to commercially sensitive issues, both in terms of financial arrangements and in respect of the technology which NESG intended to implement in its facility at Easter Langlee.

But in fact the inability to deliver both the technology and the hard cash to build the waste treatment plant were the reasons why the council's risky venture failed, and the project had to be abandoned. Yet SBC maintained its policy of strict secrecy even after NESG plunged into bankruptcy.

SBC's arguments on those grounds have been dismissed by the Commissioner. She says: "Having considered the information which the council has withheld in this case, the Commissioner is not persuaded that it is all covered by the confidentiality agreement in the contract.

"The council has not explained clearly why the information withheld from the five reports is covered by the confidentiality clause. It is not explained why the information is commercially sensitive, and has only provided general arguments in relation to the harm that would, or would be likely to be caused by disclosure".

SBC considered the withheld information to be of market value. It could, in its view, be used not only for the advancement and exploitation of the innovative technology, but for future contract bids within the waste industry. As soon as the information was placed in the public domain, it would strip the owner of the information of the benefit it is entitled to as owner..

"The council's arguments focus on the detriment which the successor company to NESG would suffer, if technological information was placed in the public domain, allowing competitors to benefit", states Ms Agnew. "It has not addressed the fact that most of the information withheld from the five reports does not consist of technical data. The council has not explained why information relating to its own matters is still sensitive".

In relation to the technological processes which NESG intended to implement at Easter Langlee, the Commissioner decided that there was 'far more information in the public domain than the council has acknowledged (or was perhaps aware of)'.

She said it was generally accepted that technology changed and developed over time and what was once considered innovative and secret often became standard and widely known as time passed.

"The Commissioner accepts that there is significant public interest in understanding what steps the council took to ensure the project was robust. There is strong public interest in understanding what measures that the council had taken in order to limit its financial exposure in a project which had been on-going for four years and had involved substantial sums of public money.

"In the Commissioner's view, disclosure of the withheld information would serve the public interest in informing the public about the actions and decisions taken by the counci, the basis for those actions and decisions, and the reasons why the project failed. As noted above, the project had involved many years of work, and substantial sums of public money".

Ms Agnew says the integrated waste management project would have had a direct effect on residents in the council area. She had given weight to the particular circumstances of the case, which incurred the council investing substantial time, money and resources, in a project that ultimately did not come to fruition.

In the circumstances, the Commissioner finds it legitimate for the public to seek to understand what happened, and in the public interest for this understanding to be as complete as possible.

Scottish Borders Council has been given until June 12th 2017 to release the information. The local authority has the right to appeal to the Court of Session on a point of law only.