FOI Request Review of PPP Penalties
Review Request :
I am not satisfied with the response that I received from Moray, who said it would breach confidence. I have put in the same request to other Scottish local authorities who have supplied me with a large amount of relevant information, and this has not been an issue. I have been given detailed spreadsheets of deductions taken from PPP contracts monthly, and I would like to know why Moray are the only authority to use confidence breach as a response to my request.
Following your request for a review of our response to the FOI you submitted, 101001593978 a review meeting was held at the council offices on 23rd October 2017. In attendance were the Records and Heritage Manager and the Information Coordinator. The Educational Resources manager also provided further information for the meeting.
The original decision notice
Upon starting the review it was found that in the decision notice sent initially was incorrect in citing Section 36 of Freedom of Information (Scotland) Act 2002. The agreed exemption was, in fact, Section 33(1)(b) “its disclosure under this Act would, or would be likely to, prejudice substantially the commercial interests of any person (including, without prejudice to that generality, a Scottish public authority).”
The inclusion of Section 36 rather than 33 in the decision notice was a clerical error for which we apologise. This error was not spotted as the Records and Heritage Manager, who approved the application of the exemption Section 33(1)(b), was in hospital.
The wording of the explanation of the application in the original decision notice reflects Section 33(1)(b) and not section 33. We agreed that the section cited in the published decision notice should be altered due to this clerical error being spotted.
The exemption at 33(1)(b) that “its disclosure under this Act would, or would be likely to, prejudice substantially the commercial interests of any person (including, without prejudice to that generality, a Scottish public authority)” was applied originally as the Records and Heritage Manager considered the information to reveal detailed information (figures) regarding the commercial contract and that it included performance figures which could alter the perception of the company; both of which would be contrary to the commercial interests of IPP (Moray Schools) Ltd. When the Records and Heritage Manger applied the public interest test they decided that the balance of public interest in this case did not merit disclosure.
Reviewing this decision
During the review the application of the exemption at 33(1)(b) that “its disclosure under this Act would, or would be likely to, prejudice substantially the commercial interests of any person (including, without prejudice to that generality, a Scottish public authority)” was reconsidered.
The review found that the exemption still applied. The review meeting reconsidered the public interest test and agreed with the requester that the public interest was best served by disclosing the information. This is due to the fact disclosure would allow fair scrutiny of the operation PPPs, their performance and cost-effectiveness. The limited scope of information requested meant that any prejudice to commercial interest suffered would be outweighed by the public interest. Therefore, the information should be disclosed as requested.
Please find attached the information sought previously in PDF Format below: