The report related to the setting up of a Local Authority Trading Company (LATC) by Wrexham Council to run Cleaning Services and was classed as a Part 2 report because of commercially sensitive information and on the basis that it may have harm labour relations. I objected to this report being a Part 2 report at the Scrutiny Committee on the 24th April 2013, my objection was based on:
- The commercially sensitive information need not have been in the report for the committee to come to a judgement on the pros and cons of an LATC.
- There were no labour relations issues as Trade Unions were already aware of the proposals.
The Committee however rejected my arguments and voted to keep the report in Part 2.
I then submitted a request under the Freedom of Information request to the Council:
I request a copy of WCBC Report no HAED/23/13S Review of Corporate Cleaning.
I am requesting this report under Freedom of Information for the purposes of placing the report in the public domain.
The Council in refusing my request stated:
The Council considers the information to be exempt from disclosure under Section 44 of the Freedom of Information Act. Under Section 44 information is exempt if the Council is prohibited by any legislation from releasing the information. The Council has concluded that the report was afforded confidentiality pursuent to the Local Government Act 1972 Para 14 & 15 of Part 4 of Schedule 12 (a). That judgement was reached by officers having considered the public interest and this was endorsed by the relevant Scrutiny Committee which dealt with the item in Part 2 of the meeting. There is no indication that the public interest has changed since the report was written and submitted.
Section 44 is an absolute exemption and the public interest test does not have to be considered.
I then requested the Council to review their decision (appeal)
I do not accept the decision to refuse the information on the basis that Section 44 is an absolute exemption where the public interest test does not apply and I request a review. My rationale for requesting a review is as follows:
Section 44(1) of the FOIA only applies if the underlying legislation on which you rely on, Local Government Act 1972 Para 14 & 15 of Part 4 of Schedule 12 (a) has been applied correctly and I would contend that it has not. First of all, there is no Labour relations issues to justify the above exemption, the Unions have been consulted and agree to this proposal and the workforce are aware of ‘something’ (which is a sad reflection on staff relations in the authority). Secondly you rely on the all encompassing ‘commercially sensitivity’ clause even though the intention is to have a 100% owned Local Authority Trading Company. Any information contained within the report that talks of pricing is not necessary and if had a suspicious mind I would of course think, “was this information put in to justify exemption?”
I have discussed this matter separately with ********* and I have informed him I would be happy to receive a sanitised copy of the report with pricing figures redacted. You have already set a precedent of releasing a Part 2 Exempt report under FOIA with confidential information redacted and that was the Centre 67 Report. You may therefore find it difficult to convince the IC that you applied the LGA 1972 properly and lawfully, and if you did not, then your claim of exemption under Section 44 also falls.
The Council rejected my appeal stating:
With regard to your request for review, the response has been considered by a member of the Exemptions Panel not involved in the original decision to withhold the information. They have taken into account the argument you put forward but were not persuaded that the decision of the Exemptions Panel was wrong for the following reasons.
Clearly the Members of the relevant Scrutiny Committee were satisfied that the report should be considered in Part II for the reasons given in the recommendations to the Committee. This matter is by no means decided and the confidential information is likely to remain so at least until the Executive Board has decided how it will proceed. They do not agree that commercial sensitivity does not apply. No decision has been taken as yet as to whether the LATC option will be pursued and therefore until it has the information would be commercially advantageous for potential bidders for the service to receive. The alleged similarity between this application and that of the release of a redacted copy of a report relating to Centre 67 is not borne out. There was very limited information in the Centre 67 report which could relatively easily be redacted unlike the business information in respect of corporate cleaning. They are satisfied therefore that the Panel's decision was correct on the case presented and do not support its release at this time in any form.
I then appealed the Council's refusal to the Information Commissioner and presented the following evidence:
I contend that Wrexham Council unlawfully withholds information from the public due to the contentious nature of that information. They abuse the powers granted to them under Schedule 12, Part 4, of the Local Government Act 1972, as justification to keep matters of public interest out of the public domain by including commercial information so as to justify its exclusion from public scrutiny. Additionally there is no Labour relations issues as Unions are fully informed.
Further abuse of the law is compounded by then hiding behind the all-encompassing exemption of Section 44.
It is my contention that if the original decision and advice is unlawful then the organisation cannot hide behind Section 44.
Wrexham Council should release this information in one or two forms:
2. With some commercial information redacted.
It is clear that this report did not fall under the Paragraph 12, LGA 1972 exemptions as Wrexham Council subsequently published a full minute of the discussion on this report.
The decision made by Wrexham Council in this case flies in the face of openness and transparency and the Commissioner should find against them.
On the 8th January 2014, I received a letter from FOI at Wrexham Council part of which reads as follows:
We write with regard to your complaint to the ICO in respect of your FOI request concerning the “Review of Corporate Cleaning” report. We have now reconsidered your request and the previous decision to apply the exemption under section 44 of the Freedom of Information Act 2000 (hereafter “FOIA”). In view of the ICO’s guidance on the “part 2” procedure under the Local Government Act 1972, in relation to section 44 of FOIA, it has been decided that the section 44 exemption does not apply to your request. Following reconsideration, the Council has decided that it is content to release a redacted copy of the report to you. The redactions are considered necessary, because the information which has been redacted is deemed to be commercially sensitive and could damage the Council’s commercial interests if disclosed to the public at this stage. The Council has sought to make the minimum amount of redactions possible.
Accompanying this letter was the redacted report, the exact same redacted report as I requested on the 1st May 2013, prior to making my review request.
The Information Commissioner has obviously taken the view that Wrexham Council were wrong to apply the Section 44 exemption to this report and had they not agreed to publish this redacted Part 2 report then it is likely that the Commissioner would have issued a Decision Notice against the Council. I very much hope the Commissioner will issue guidance on the application of Part 2 exemptions.
I apologise for the length of this blog but I thought it important to provide sufficient information on this case so that it may assist others who wish to challenge confidentiality decisions of other public authorities.