From: To: [[Ian Jackson]] Subject: Your complaint against Cambridgeshire County Council [Ref. FS50431297] Date: Mon, 14 May 2012 09:07:27 +0100 PROTECT 14 May 2012 Case Reference Number FS50431297 Dear Dr Jackson I write regarding the above complaint brought to the Information Commissioner against Cambridgeshire County Council (the ?Council?). To recap, this complaint concerns the refusal of the Council to disclose material relating to the adjudication entered into by the Council and Bam Nuttall in respect of the guided busway dispute. I can confirm that upon being allocated to the case I have asked for, and subsequently received, further submissions from the Council to support its position. I have also requested that I be given access to the disputed information itself. Regrettably, there has been a slight delay associated with my being able to review this information. However, having now had an opportunity to consider the Council?s arguments alongside the disputed information, it would seem appropriate to inform you of my provisional view on the case. In particular, for the reasons that I go into below, I can advise that it is likely that we would uphold the decision of the Council to withhold the requested information. As grounds for refusing your request, the Council has relied on the exceptions in the EIR provided by regulations 12(5)(b) (course of justice), 12(5)(d) (confidentiality of proceedings) and 12(5)(f) (voluntary supply). For any of the exceptions to be engaged, a public authority must be able to demonstrate that the conditions inherent in the particular exception are met. As you will be aware, exceptions exist to protect information the disclosure of which would in some way be harmful. In this case there seems little doubt that the factors described in the exceptions cited by the Council cover the disputed information, with each of the exceptions referring in some way to a duty of confidence. However, even where it is found that an exception is engaged, under regulation 12(1)(b) it is then necessary to weigh up the public interest arguments attendant to the disclosure of the information. The requirement to consider the public interest test acknowledges the fact that there may be occasions when the public interest in the release of information overrides the level of concern about the harm arising through disclosure. A common theme across the application of the exceptions here refers to the need to preserve the integrity of the proceedings by which the Council was attempting to resolve a dispute with a third party, Bam Nuttall, about the provision of a particular service, the guided busway. The Council has argued that to disclose the requested information during the proceedings could ultimately affect its ability to secure an advantageous outcome; an outcome which may, in turn, be favourable to the public to whom it has a fiduciary duty. A key issue in this case, I would suggest, relates to the timing of the request itself. I am aware that at the point at which the request was made, which will serve as the focus of my considerations, the Council had already commenced legal proceedings against Bam Nuttall in the Technology and Construction Court. The information that was submitted to the adjudicator now forms part of the litigation bundle that was to be presented in court. As with most proceedings of this nature, it is an accepted convention that it would be unfair to disclose in the midst of proceedings information that may be central to a legal position adopted by a party. On this point, the Commissioner has previously observed there is an inherent public interest in protecting confidences and that a duty of confidence should not be overridden lightly. This is because the consequence of any disclosure of information will be to undermine, to some degree, the general principle of confidentiality. It is on this basis that I consider the Council's position has merit. This is not to say that there are not strong public interest arguments in favour of disclosure. Furthermore, I am mindful that, under regulation 12(1) (c), the EIR places a presumption in favour of disclosure. I have therefore been careful to consider the information in this light. Yet, based on the circumstances as they stood at the time the request was made, it would seem reasonable to conclude that the public interest rests firmly with the maintaining of the exceptions. I am aware that this view will not be welcomed by you. However, in light of my findings, I would recommend that the case is closed at this stage. This is based on the view that the Council would not be required to take any steps on this matter. However, if you do not agree with this course of action, I would ask that you let me know by 28 May 2012, providing any additional arguments you feel should be considered by me. Alternatively, you do not need to respond if you are happy to withdraw your complaint based on my provisional view and the case will be closed once the deadline specified above has expired. Finally, I trust I have clearly set out the reasons for reaching my provisional view but please do not hesitate to contact me on 01625 545 739 if you wish to discuss any aspect of the case. Yours sincerely Alun Johnson Alun Johnson Senior Case Officer Information Commissioner?s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF. 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