Bins, Biffa, page 59, Wirral Council, “Confidential Information” and what you’re not supposed to know (yet)
I was reading through the Biffa contract (who get paid ~£12 million a year for collecting bins and other things) and this interesting snippet about Freedom of Information and Data Protection caught my eye on page 59. I haven’t made any FOI requests for the yearly CO2 emissions of bin lorries but this is how such a request would be dealt with if someone were to do so. This is probably only of interest to those who work in this area such as the media, FOI practitioners and of limited interest to the public, so apologies if I’m getting boring! Contractor in the contract refers to Biffa Waste Services Limited. At 188.8.131.52 I couldn’t help but laugh at the bit about time for compliance for FOI requests considering Wirral Council’s track record and my recent decision notice from ICO on that matter.
The “absolute discretion” bit in 4.61.3 is very interesting as quite often local councils refuse to release information about companies and contracts on commercial sensitivity grounds saying well we’d like to give you this information but company X won’t let us.
Last Thursday (11th September 2014) Wirral Council’s Cabinet agreed to ask Kevin Adderley to enter into negotiations with Biffa over extending this ~£12 million/year contract from 2020 to 2027 without putting it out to tender. However an extra clause was added over value for money. Mr. Adderley was asked to report back to a future Cabinet meeting on the outcome of negotiations.
However the contract does state that if Wirral Council wish to extend the contract from 2020 to 2027 they don’t have to tell Biffa this until on or before 21st August 2019. So why the big rush other than to pander to Biffa’s commercial interests and damage Wirral Council’s?
Well from what was said at the Cabinet meeting Biffa Waste Services Limited have offered Wirral Council “incentives” on the current contract (which runs to 2020) if Wirral Council agree to a seven-year contract extension and don’t put it out to competitive tender when it expires in 2020.
Extending the contract by seven years is effectively making a decision that will tie the hands of future administrations (of whatever party or parties) at Wirral Council. However I’m sure (if officers are doing their job properly) that what I’ve just written is the kind of details that were in the exempt appendices for last Thursday’s Cabinet meeting. The Labour politicians on Wirral Council’s Cabinet decided that the public aren’t really supposed to know about it (which is why the press and public got chucked out of the public meeting before those appendices were decided despite the public interest test arguably being in favour of such stuff being in the public domain).
Another factor to consider is that from November 2014 Wirral Council will be under a legal duty to publish such contracts (we here have a copy of the very long contract as part of the 2013/14 audit but it would probably take me about a day of work just to publish a fraction of it as it is very, very, very long) and from November 2014 invoices. Hence I’m sure Biffa are keen to have it extended by seven years, before people like the Rt Hon Frank Field MP start referring to them again (see the last Birkenhead Constituency Committee meeting for that) and anyone kicks up more of a fuss! Oh dear, have I let an awful lot of cats out of the bag yet again?
4.61 Freedom of Information and Data Protection
4.61.1 The Contractor acknowledges that the Council is subject to the requirements of the FOIA and the Environmental Information Regulations and shall assist and cooperate with the Council (at the Contractor’s expense) to enable the Council to comply with Information disclosure requirements.
4.61.2 The Contractor shall and shall procure that its sub-contractors shall:
184.108.40.206 Transfer a Request for Information to the Council as soon as practicable after receipt and in any event within two Working Days of receiving a Request for Information;
220.127.116.11 Provide the Council with a copy of all Information in its possession or power in the form that the Council requires within five Working Days (or such other period as the Council may specify) of the Council requesting that Information; and
18.104.22.168 Provide all necessary assistance as reasonably requested by the Council to enable the Council to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA or Regulation 5(2) of the Environmental Information Regulations.
4.61.3 The Council shall be responsible for determining at its absolute discretion whether:-
22.214.171.124 The Information is exempt from disclosure under FOIA and the Environmental Information Regulations;
126.96.36.199 The Information is to be disclosed in response to a Request for Information, and
188.8.131.52 In no event shall the Contractor respond directly to a Request for Information unless expressly authorised to do so by the Council.
4.61.4 The Contractor acknowledge that the Council may, acting in accordance with the FOIA, or the Environmental Information Regulations disclose Information:-
184.108.40.206 Without consulting with the Contractor, or
220.127.116.11 Following consultation with the Contractor and having taken its views into account.
4.61.5 The Contractor acknowledges that any lists or schedules provided by it outlining Confidential Information are of indicative value only and that the Council may nevertheless be obliged to disclose Confidential Information in accordance with Clause 18.104.22.168.6.3.
4.61.6 The Contractor shall ensure that all information produced in the course of the Contract relating to the Contract is retained for disclosure and shall permit the Council to inspect such records as requested from time to time.
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