Freesteel Blog » The worst ever FOI response I have ever seen
The worst ever FOI response I have ever seen
Friday, April 13th, 2007 at 12:12 pm
Following the request made last month for information about how Bristol Council had managed to contract out all its IT services with no oversight at all, I’ve got this message back:
Dear Mr Todd,
I now write further to my email of 11 April and apologise for the delay in the response.
I will now respond to each of your queries in turn.
1. A copy of the full contract as it stands between “Bristol City Council” and the “Local Education Partnership”, which Tim Sheppard’s told me was available to FOI users in his email to me on 6 March 2006.
I can confirm that the contract is a standard document populated by our contractual details which are commercially sensitive. As a result both sections 41 and 43 are engaged. (Commercial interests and Information provided in confidence) Disclosure of this particular information would prejudice the commercial interests of the parties and would be a breach of confidence. The public interest has been considered and although the City Council has a presumption of disclosure, it is considered that the prejudice that would occur outweighs the duty to disclose in this particular circumstance. A copy of the standard document and further information can be found at http://www.partnershipsforschools.org.uk/StandardDocuments.htm and http://www.bsf.gov.uk
2. The list of people on its governing body, evidence of legal independence of the Council if there is any, and any available accounts so far, and an explanation of what it means for it to have a “commercial interest”.
The LEP is a registered company and therefore has legal independence. The Council has a minority shareholding in this organisation and is not in the definition of an influenced company under the Local Government Housing act 1989 as amended. I can also confirm that there is not a Governing Body, but instead a board of directors. I would suggest you contact the LEP at the address contained in the following answer for details of accounts. I can confirm however that Bristol City Council put forward £30,000 for the working Capital of LEP. This is the Council’s 10% share in the LEP. This information is available in the Cabinet report of 9 March 06, which can be found at www.bristol.gov.uk I can also confirm that the LEP has only been trading since July 2006 so there will not be any accounts yet available for inspection.
3. All relevant details of the statutory duties of the “Local Education Partnership” in relation to the Freedom of Information Act.
I would suggest that you direct this question to the LEP at Bristol LEP Limited, Maple Cross House, Denham Way, Maple Cross, Rickmansworth, Hertfordshire, WD3 9SW
1. According to press releases I have read, the Local Education Partnership is made up of Skanska, BCC, and Partnership for Schools. Is it your view that, although it is two in three parts publically controlled, and its entire budget derives from the BCC, it is not a public authority subject to the provisions of the Freedom of Information Act? If it is subject to the Act, what is its address for sending requests?
Please see answer above
2. In the words of my copy of the Freedom of Information Act Awareness Guidance No. 5, Annexe: “A Public Authority cannot attempt to contract out of its responsibilities under the Act and unless information is covered by an exemption it must be released if requested.” You have assured me that the major reason this information cannot be released is because BCC signed a contract saying that the information is confidential (while being unable to locate any materials that could explain why such a clause had been signed). Am I correct in thinking that this exemption cuts right through the guideline?
As previously confirmed, FOI obligations were considered and addressed when the contract was drafted and commercially sensitive information within the contract was highlighted so that FOI requests could be dealt with more efficiently.
Finally, I would very much like to see the contract between BCC and the LEP which you have referred to. Can you pass it on, or should I file it through the regular email address?
Please see answer to first question above.
This response should answer your request in full, however if you are not satisfied with this response or wish to lodge an appeal against any exemptions that may have been applied, you can do so by writing to the Data Protection Officer at Bristol City Council Legal Services, The Council House, College Green, Bristol, or email@example.com. Details of the complaints procedure can be found at http://www.bristol-city.gov.uk/complaints.
If, after you have exhausted the Council’s complaints procedure, you are still not satisfied with the response you have received you have the right to complain to the Information Commissioner, details of your right to complain can be found at http://www.ico.gov.uk/complaints.aspx
There’s a very extensive set of paperwork relating to this bogus construct at for £18 a page. There has got to be some other sources.
The central issue here is whether there is a loophole in the law that enables the business community to carry on looting the public finances out of public view, or whether the we can start to control this robbery of our economic opportunities as well as hard cash, by making sure that it has to happen in broad daylight.
There are two legal mechanisms that look good, but don’t work properly. The first is the EU procurement mechanism, that sets out an open bidding procedure where we get to see how a private company gets awarded a contract by a “Body Governed by Public Law”, with the intention of reducing corruption and opening the process to all businesses. The second is the Freedom of Information Act, which applies to all “Public Authorities”, which gives the public a right to know what’s going on in the state owned institutions which they are compelled without choice to pay for.
There is a legal ass that we don’t have a right to know or influence what’s going on inside an ostensibly private corporation, even if its entire income and services are derived from public funds. Once such a body gets a contract to use our money, the directors are legally in it for themselves; and all stated public benefits must be “aspirational” in nature.
Clearly, if there is a gap between the definitions of EU procurement and FOI Act, of what we could be defined as a “Public Body”, then it’s possible to tunnel money out through this back alley.
For example, a City Council called B — undoubtedly a public body — contracts all the educational services out to a fake shell company called L, which then buys in lots of over-priced and exclusive services from a large company S in whose building it just so happens to have its offices, even though officially and legally it is an independent company.
Now, if B can shovel money to L as though L were a public body, like a division within the council, it doesn’t need to declare anything through EU procurement. If L was not a public body according to Freedom of Information Act, we don’t have a right to know what L does with it.
There’s a few documents (in crappy WORD format) I’m reading through at the bottom of the Standard Document List, such as Counsel’s first summary opinion in relation to procurement, which details parts of how this scam is legally constructed.
Provided the principles which actually guide the management of the LEP are based on the criteria of performance, efficiency and cost effectiveness (as set out in the SHA and SPA provided), I conclude that each LEP may be structured and will be able to operate in such a way that it will not qualify as a “body governed by public law” and thus be covered as a contracting authority for the purposes of the public procurement regime.
In other words, it’s arguing that L is a private body with regards to the EU procurement law in what it buys, even though it appears to have been constructed by B solely for the purposes of turning this contract with S. I’m looking for where is the EU procurement procedure whereby B decided it could buy these services from L without putting it to open tender.
It’s a pain and a struggle. All we want to find out is how much do the computers and the crappy Microsoft software purchased by our state educational system cost, and why aren’t they installing Linux servers everywhere, even though they are the cheapest most effective option and everyone is doing it.
They obviously know they’ve got something to hide, or they would publish it, since there is no recognizable commercial confidentiality matter that could pertain, since these cast-iron long term contracts have now all been signed. There is nothing we can do to stop them ripping the entire system off for every penny and small business opportunity possible. The deal is done. All we are left with now is simply the Right to Know.