Confidential information locked in council inbox!

FOI requester initially told data is too sensitive to be released: then Borders council changes its stance, claiming it doesn't hold the information asked for. But then again if it does exist...

EXCLUSIVE by LESTER CROSS

An attempt by a climate risk expert to investigate investment policies of the £909 million Scottish Borders Council pension fund was thwarted when the authority first decided the information was commercially sensitive, then claimed the material - if it existed - could not be accessed from a former employee's inbox.

The story began in March when Joel Benjamin, a researcher and journalist whose work has featured on Channel 4's Despatches, the Financial Times, and the BBC, submitted a Freedom of Information request to SBC. He has investigated the fossil fuel exposure of more than 100 local government pension schemes.

He asked for information in relation to Scottish Borders management of pension fund climate risk, and information and advice provided by external investment consultants.

Mr Benjamin's detailed FOI request continued: "Please provide emails and correspondence between council employees (Scottish Borders finance function + responsible investment and pension fund management), procurement, elected members (on pension fund committee), scheme members and external investment consultants on climate risk between 2018 and 2023. 2 - Please confirm if specific advice or information on climate risk has been sought by Scottish Borders and received from Mercer, or other investment consultants".

In April, Mr Benjamin, who is communications manager for the Carbon Tracker think tank, received a response, prepared and provided on behalf of the council's Finance & Corporate Governance department.

 It said: "Although the SBC Pension Fund is open and transparent in its approach to responding to FOI requests, however, on this occasion we classify the majority of the information requested as private and commercially sensitive material which we are unable to share. I have provided an overview of the SBC Pension Fund’s position, based on publicly available information below."

The local authority added: "The SBC Pension Fund does not currently have a policy in place to fully
divest from fossil fuels. However, this is an area, along with wider environmental, social and governance (“ESG”) considerations, the Committee has spent a great deal of time deliberating and debating in order to agree a robust approach.

"The Pension Fund does have a Responsible Investment Policy which summarises the Committee’s approach in this area and can be found on the SBC Pension Fund website. This policy specifically addresses climate and environmental issues.

"The position taken by the Committee is one which looks to balance the fiduciary duty of delivering the best risk adjusted investment returns possible and having a strong positive ESG impact with the investments the Pension Fund makes. This balance is important to ensure the Pension Fund is able to pay the members’ pension benefits as and when they fall due and do so in an affordable and sustainable way."

In refusing Mr Benjamin's request, SBC explained the exemption being relied on was section 33 of FOISA - Information may be withheld if disclosure would (or would be likely to) prejudice substantially the commercial interests of any person or organisation.

Mr Benjamin immediately sought reconsideration of that decision by SBC's internal FOI Review Body. He told the council: "The refusal notice implies that release of the requested information would be prejudicial to commercial interests of the council and/or the person/consultants supplying it.

"In its response, Scottish Borders has made no attempt to clarify to which specific types of information within the scope of the request (for e.g. email correspondence, risk register documents) commercial sensitivity should be applied, nor any specific reasons or justification as to why each type of information held is deemed to be commercially sensitive or potentially damaging to the named parties".

He argued that given both the substantial sums of public money being managed, and the scheme investments in large financial, transportation, industrial, agricultural and fossil fuel sector companies driving climate change - there was a legitimate public interest in understanding upon what information and advice scheme funds were being invested, and that such information and climate risk advice, in the absence of any regulatory oversight, was consistent with the latest climate science on expected future global warming, and its likely effects on both the environment, and future pension scheme returns.

The outcome of the group's deliberations was sent to Mr Benjamin last week.

It states: "The Council’s Freedom of Information Review Group has considered your request and it has concluded as follows: Your request was originally refused by virtue of Section 33 of the Freedom of Information (Scotland) Act 2002 (FOISA). Section 33 states that information is exempt if its disclosure would, or would be likely to, prejudice substantially the commercial interests of any person or organisation. 

"It was concluded by the Review Group that Section 33 was not the most appropriate exemption to apply to the requested information and that the information was in fact exempt under Section 17 of FOISA due it not being held by the Council."

"It was concluded by the Review Group that the information you requested is not held by the Council. The Council’s pension representative recently left her post and has not been replaced internally. There is currently nobody employed within the Council who corresponds directly with the Council’s external investment consultants (ISIO) on the matter of climate risk. 

"If the requested information exists then it would be contained within the inbox of this former employee. The Council cannot access and search a previous employee’s inbox for the purposes of responding to a Freedom of Information request. Accordingly, the information is deemed as not being held by the Council in accordance with Section 17 of FOISA 2002."

A veteran FOI user commented: "The Council cannot rely on this new excuse - that of no access to a former employee's mailbox - to refuse to hand over the information. There must be copies of this elsewhere as SBC will obviously need access to it on an ongoing basis, and perhaps even for audit purposes. On the face of it, it seems the council is storing the data in the ex-staff member's account in an attempt to shield it from scrutiny".