Second crushing defeat for secrecy

by DOUGLAS SHEPHERD

Another concerted attempt by Scottish Borders Council to cover up information linked to their costly and disastrous waste management project has been foiled yet again by the Scottish Information Commissioner [SIC].

The latest setback for the local authority - it appears more than 80 documents were withheld from Freedom of Information requester Bill Chisholm - follows a similar defeat in April when the then SIC Rosemary Agnew ordered SBC to release six reports which had been heavily censored to hide vital facts and figures.

When those documents were finally made public earlier this month they showed that elected members at SBC sanctioned a Deed of Variation with contractors New Earth Solutions Group (NESG) before a series of technological trials had even been initiated at a research and development centre.

The brand of technology was to have been used in the construction of a £21 million "cutting edge" waste treatment centre at Easter Langlee, Galashiels, to deal with Borders household rubbish.

But as has been well documented in these columns the entire project collapsed in disarray in February 2015 when it was realised the technology did not work and the scheme could not attract funding. As a consequence SBC had to write off at least £2.4 million of taxpayers' money while the now bankrupt NESG are believed to have lost several millions too.

Since the Easter Langlee plans were abandoned, leaving SBC's waste treatment strategy in tatters, the council has repeatedly refused to disclose information under freedom of information.

They have claimed on every occasion that to divulge reports and documents would harm NESG and its partners even though all of them are either in administration or being dissolved by insolvency experts. Despite previous SIC decisions dismissing this stance SBC has continued to cling to the 'commercial confidentiality' clause in the doomed contract.

But in a damning decision notice issued to Mr Chisholm this week, the current information commissioner Margaret Keyse has instructed the local authority to release the information it withheld. They have been given until a date in August to comply with her orders.

The original FOI request in this case was lodged with SBC in May 2016, and it has taken over a year to resolve the issue of the council's refusal to supply the documentation they were asked for.

Ms Keyse' 18-page 'judgement' describes how the council was late in responding to the request, then provided reports some of which the requester considered to be irrelevant. There was no index supplied with the CD containing limited information, and the reports were not in chronological order.

The Commissioner explains: "Having considered the documents that fell within scope of Mr Chisholm’s request (calculated by the Commissioner to be 201 in total), it was not clear what information had been withheld or disclosed from some of the documents. In a series of discussions with the investigating officer, the Council clarified what information had been withheld."

She added: "The investigating officer found that some of the withheld information had been published on the internet by another Scottish public authority. The Council was asked to comment on this. It did not respond directly to this request".

In rejecting SBC's arguments yet again the SIC points out: "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 parts of the documents containing withheld information are covered by the confidentiality clause. It has not explained why the information is commercially sensitive, and has provided only general arguments in relation to the harm that would, or would be likely to be caused by disclosure."

The Council stated that disclosing the withheld information would place it in the public domain. The information was considered to be of market value. It could be used not only for the advancement and exploitation of the innovative technology, but for future contract bids within the waste industry.

The Council submitted that it was impossible to determine a timescale as to when specific harm would occur, if the information was disclosed. However, as soon as it was placed in the public domain, it would strip the owner of the benefit to which they were entitled, as owner. Therefore, to that extent, the harm would be immediate.

Ms Keyse observes: "There also appears to be little consistency about what has or has not been withheld. For example, information about the time taken to test the waste processing system has been withheld throughout, except in one document where it was disclosed.

"Not all the withheld information relates directly to NESG, and the Council has not explained why information relating to its own matters is still sensitive, or why this information is excepted from disclosure".

In investigating this case, the Commissioner’s staff spent several weeks reviewing the information withheld from Mr Chisholm and trying to establish why, in the Council’s view, it was considered to be sensitive, especially where similar information had been disclosed.

The Commissioner concluded there was comparatively little information in the withheld documents about the financial status of NESG or details of the technology it was developing which had not already been published.

Mr Chisholm argued there was an overwhelming case for release of all information relating to the Council’s dealings with NESG, given the loss of at least £2.4 million resulting from the collapse of the project. Mr Chisholm argued that the Council should have been aware that NESG was on the brink of insolvency when a Council delegation carried out a “due diligence” visit to NESG’s headquarters in October 2014.

He commented that when the Council entered into the contract with NESG, taxpayers were told it was a £65 million contract over 24 years which would divert 80 per cent of waste from landfill, provide heat and power for hundreds of homes in Galashiels, and make the Council the leading waste management authority in Scotland.

Instead, the Council had written off £2.4 million of public money on a project which could not be funded and did not have the necessary technology to guarantee success. Mr Chisholm told the Commissioner that the Council is now at, or near, the bottom of the Scottish recycling league.

"The Commissioner accepts that there is significant public interest in understanding what steps the Council had taken to ensure that the project was robust. There is a strong public interest in understanding the 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", concludes Ms Keyse.

She continued: "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 Council, 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. The integrated waste management project would have had a direct effect on the residents in the Council area.

"The Commissioner has given weight to the particular circumstances of this case, which incurred the Council investing substantial time, money and resources, in a project that ultimately did not come to fruition. In these circumstances, the Commissioner finds it is legitimate for the public to seek to understand what happened, and in the public interest for this understanding to be as complete as possible".