Wholesale Markets private report

By on 24/08/2011 in FOI/Data

FOI5884: Response to a request for information made under the Freedom of Information Act 2000, for a copy of the Private Report regarding Wholesale Markets options from Cabinet Report July 2011.

Please find attached below a copy of the requested information.

Birmingham City Council has withheld or redacted some information contained in the report for the following reasons:-

Section 43 Commercial Interests

Under the Freedom of Information Act a public authority is entitled to withhold information under section 43. 

S.43 provides that:

“(1) Information is exempt information if it constitutes a trade secret.

(2) Information is exempt information if its disclosure under this Act would, or would be likely to; prejudice the commercial interests of any person (including the public authority holding it).

(3) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice the interests mentioned in subsection (2).”

S.43 is a qualified exemption, i.e. it requires a consideration of the public interest test in disclosure as opposed to withholding the information requested. 

The public interest factors are the same for both s.43 and regulation 12(5)(e) and (f), and are set out below.

Regulation 12(5)(e) and (f) of the Environmental Information Regulations 2004.

In addition to the Freedom of Information Act, the report could also potentially fall under the Environmental Information Regulations, which operates in a similar manner.

The information is withheld under regulation 12(5) (e) and (f), which provides that a public authority is entitled to withhold information where the disclosure would adversely affect:-

“(e)the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;

(f)the interests of the person who provided the information where that person—
(i)was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;
(ii)did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and
(iii)has not consented to its disclosure.”

As with s.43 of the Freedom of Information Act 2000, Birmingham City Council is required to take into account the public interest when determining whether to disclose or not.

Public interest considerations

Birmingham City Council accepts and agrees that there is a strong public interest in the Council to be open and transparent, both in terms of its decision-making processes and its finances, to allow people the ability to scrutinise and where appropriate to challenge decisions made by the Council on their behalf.  However, the City Council also has to balance the detrimental impact any disclosure would have in relation to any third party or even the Council.

The withheld information contains financial data about the preferred developer the City Council is currently holding negotiations with on options for the Wholesale Markets review.  Birmingham City Council therefore considers, that if it was to release to the world at large any financial data about the developer including proposed costs and options for the Markets, it would have a detrimental impact to both the commercial interests of the developer and to Birmingham City Council, as negotiations are still at an early stage and have not yet concluded.  

Also, future developers would be less willing to discuss matters with Birmingham City Council when they consider that there is a risk of financial data about them being disclosed, thereby causing commercial harm to them, which could potentially inhibit the Authority's ability to successfully negotiate in future. 

Whilst we recognise and accept that there is a high degree of public interest in disclosure for the aforementioned reasons, Birmingham City Council considers that disclosure of the un-redacted Private Report and appendix would be contrary to the public interest.

Re Use of Public Sector Information: Where Birmingham City Council is the copyright holder of any information that may be released, re-use for personal, educational or non-commercial purposes is permitted without further reference to the City Council. Where the re-use is for other purposes, such as commercial re-use, the applicant should notify the City Council in writing to seek approval or agree terms for re-use.

Private Agenda

Private Report

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