"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.
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 www.barnet.gov.uk and following the links to Committee papers and searching under Cabinet meetings. This is a specific link http://barnet.moderngov.co.uk/ieListDocuments.aspx?CId=120&MId=7360&Ver=4The 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.