Friday 15 February 2013

Democracy in Barnet - prognosis poor

Back at the beginning of December when Cllr Richard Cornelius was telling us all not to worry and how the NSCSO contract would be fantastic for all, I submitted a Freedom of Information request asking to see a copy of the contract. As ever I thought I was being reasonable by asking:

"Please provide me with a copy of the contract between Barnet Council and Capita for the NSCSO project. If you cannot supply the complete contract in its entirety, please provided me with all those elements that are not strictly commercially sensitive and have already been disclosed  or about to be disclosed in the public reports and answers to questions considered at scrutiny or cabinet meetings".

I understood that certain elements may have been commercially sensitive but there must be large tracts of the contract which are not. I duly waited for a response and on 3 January 2013 I received a rather strange reply.

"I am writing to inform you that the information you request is not held by London Borough of Barnet. The contractual agreement for the provision of the New Support and Customer Services Organisation (NSCSO) has yet to be finalised and signed and therefore no final contract currently exists. The contract is expected to be signed between late January and March 2013. Following this, it is our intention to publish the contract on the council's website having redacted any elements considered to be commercially sensitive."

I have to say that I found the response quite bizzare. We all know that the contract does exist. We have even seen photos of the contract. Having made the recommendation to accept Capita's bid and commenced the Alcatel period the Council are not able to amend the contract, they are simply awaiting signature - subject to the Judicial Review. Unsurprisingly, I asked for an internal review as follows:

"I wish to request a review of my FOI request. I did not ask for the “final contract” merely the contract. A draft contract does exist, I have seen pictures of it and councillors have inspected it so I cannot see how you can say the information is not held".

Twenty working days came and went and I received notification that the Council would need more time to consider my request. Today, some two and a half months after I originally asked for a copy of the contract, I received the findings of my request for a review.

Internal Review
I have undertaken the internal review and the outcome of my review is as follows.
At the time of the response it was understood that the request was for a copy of the finalised NCSCO contract.  As this contract is not yet finalised the view was this information was not held.  This was a reasonable view  to take at that time  Having received the details of your Internal Review the exact nature and scope of your request has been clarified and we can accept that the original response was unintentionally erroneous. I apologise for this misunderstanding.  I confirm that the council does hold the information requested in that there is a draft contract in existence.
 However, the information is wholly exempt from disclosure.
In my recent email to you I stated that there would be a delay in responding to you as there was a need to undertake the public interest test in respect of an exemption.  At that time this was correct as the council were considering the exemption in section 43.  However, upon further consideration, the information requested is exempt by virtue of section 44(1) and section 21 of the Act.
Some information contained in the draft contract has already been made public and is readily accessible.  Therefore it is exempt under section 21 of the Act (information publically available).  The information can be obtained at and following the links to Committee papers and searching under Cabinet meetings.  This is a specific link
 The remaining information is exempt under section 44(1) of the Act.  This section states that information which is prohibited from disclosure under other legislation is exempt under the Freedom of Information Act 2000. Section 44 is an absolute exemption, which means that there is no requirement to undertake a public interest test.
The legislation which prohibits disclosure is the Public Contracts Regulations 2006, Regulation 43.  This states:
(1)Subject to the provisions of these Regulations, a contracting authority shall not disclose information forwarded to it by an economic operator which the economic operator has reasonably designated as confidential.
(2) In this regulation, confidential information includes technical or trade secrets and the confidential aspects of tenders."
The information (the draft contract) was forwarded to Barnet by the economic operator, and it has been reasonably designated by them as confidential.  It is accepted that there must be legitimacy to the claim of confidentiality.  This is met.  The information was provided to the council in confidential circumstances, has the necessary quality of confidence and there is no overriding public interest under the law of confidence to negate the duty.
Advice and Assistance
The Council has a duty to provide advice and assistance to requesters, and the following is provided to you under this duty.
The council intends to publish the signed contract (having redacted any elements considered to be commercially sensitive) on the council's website which is anticipated to be later this year depending upon the outcome of the ongoing Judicial Review challenge. 

Now let's just examine what they have said in a bit more detail. First of all they say that some of the information is readily available. That is partly true there are one or two snippets of information disclosed in response to public questions at cabinet meetings. There are also summaries about the contractor's responses which have been provided to cabinet members. However, at no point do they provide specific contract clauses or even an index of the contract. This, in my opinion, does not in any form whatsoever replace a request to see a contract.

When  it comes to the claim that the information is wholly exempt under legislation I simply do not accept that every single word of the contract is exempt. The response states that the draft contract was forwarded to them by Capita, yet at the cabinet meeting where this was discussed a very nice chap from Trowers & Hamlins said he had written the contract. Capita may have submitted specific commercial elements which I have always accepted may be commercially sensitive but according to Trowers & Hamlins representative they drafted the contract not Capita and therefore the statement is incorrect.

What really undermines Barnet's position is that in one breath they say the whole contract is exempt and then follow this by saying they will publish a redacted version later in the year. In that case why can't they provide me with a redacted version now.

I'll tell you why, because they simple do not want residents to understand anything about this massive outsourcing contract before it is signed. Once it is signed we will be stuck with it for ten years without any option to question any of the clauses. If they persist with this and the DRS contract we will find that all of the Council services will be forever completed shrouded in secrecy. No ability to test what performance measures are in place, or even what the service specification is.

Barnet have failed to consult on this contract and they refused to allow any debate on the contract. A few people have decided that a massive multi billion pound corporation can take control of our borough and we must accept that without question and without any form of public scrutiny. Barnet  have no political mandate for this project and at every step they have sought to maintain complete secrecy. This not not what I understand as democracy.

Some people ask me why I bother to keep asking questions about the way the council is run. My view is that democracy is not fixed in stone, it adapts to its environment. In an environment of secrecy where no one questions what is being done in their name democracy becomes redefined as something inferior and inadequate and accepted as the norm. That is happening in Barnet and unless more people challenge what information we are entitled to see, democracy will continue to shrivel and eventually it will disappear.


  1. Bang on the money as ever Mr Reasonable.

    I suppose the poor Information Commissioner will have another complaint to deal with concerning Barnet Council. They will probably have to have a special Barnet Council team soon at the ICO as they get so many complaints.

    The ICO rang me this morning about a complaint I made in June which is now almost resolved. Which one I had to say. Barnet Council they said. No, which of my complaints about Barnet Council. We got there in the end.

  2. A brilliant post Mr R: and just outrageous behaviour from Barnet on every level, yet again. Your last paragraph says it all, and underlines just why we need to defend our right to scrutinise the activities of our local authorities.

    After complaining to the ICO about the Joint Venture related minutes that are being unlawfully withheld from me, and after an FOI appeal which did not take place, I have been informed that Barnet is now processing the appeal which should have been done months ago. Clearly they have been compelled to but are deliberately being as obstructive as possible over the whole issue. I wonder why that might be?

  3. Got the same reply for my FOI request for the IT investment plan, with a few words changed to reflect my request. I tend to doubt that the refusal to publish came from Crapita; in their DWP's PIP bidding, the laid themselves naked on the table, and there IT, hardware, software, procedures and interfaces design is available for all on both dwp and the commons web sites.
    With this blanket refusal, putting themselves behind an iron curtain of secrecy, they are playing into the hand of the JC, is there an Achitophel around there?

  4. Shocking and disgraceful but cut-and-dried, recorded evidence of the lack of public consultation and determined secrecy of the Council and Cabinet that provides irrefutable support to the Judicial Review. Thank you for persisting and challenging on behalf of us all and our democratic rights.

  5. From: Laws, Sarah
    Barnet Borough Council

    18 February 2013

    Dear Mr Cohen

    I can log this in as a new FOI request but you may find the
    clarification below assists you.

    The text of my Internal Review (which I have copied in below) does not
    state that the FOI request was sent to the economic operator, nor that
    they made any response to the request (as it was not sent to them).

    The information in question - the IS investment Plan - was submitted to
    Barnet by the economic operator on 21/11/12 as part of the NSCSO bid.
    As part of that bid it has been designed as confidential by the economic
    operator and therefore is prohibited from disclosure under Regulation 43
    of the Public Contracts Regulations 2006; and therefore is exempt under
    section 44 of the Freedom of Information Act 2000.

    I trust that this clarifies the situation.
    However, the FOI section in the contract state that:
    The Authority shall be responsible for determining in its absolute discretion and
    not withstanding any other provision in this Agreement or any other agreement whether the commercially sensitive information and/or any other information is exempt from disclosure in accordance with the provisions of the FOIA or the Environmental Information Regulations.