The Court of Appeal decided that pricing data, including business case and financial model, together with profit rates and pricing data was worthy of protection and was therefore exempt from disclosure, as the release of such commercially sensitive information was a breach of the Veolia’s human rights under article 1 of the 1st protocol of the European Convention of Human Rights.
It should be noted that whilst the majority of the information has been/is being disclosed, some commercially sensitive or confidential information contained in the agreement and the schedules and appendices have been withheld, these primarily relate to pricing structures and pricing formula’ business models and pricing data. However, details of all payments of over £500 made to a contractor are released by Birmingham City Council on a monthly basis on our web site: www.birmingham.gov.uk.
In considering whether or not the information should be disclosed, Birmingham City Council is obliged to consider the impact the disclosure of the information would have on the successful tender.
For information to be deemed to be confidential, it must have the following characteristics, namely being:
- The confidential information must not be in the public domain,
- The information must be worthy of protection by confidentiality, i.e. the information must not useless nor trivial; and
- Thirdly, the public interest in the preservation of a confidence might be outweighed by a greater public interest favouring disclosure;
at the time the disclosure is made.
Whilst the agreement between Birmingham City Council and Service Provider sets out key information which the parties consider being explicitly confidential (schedule 31) confidential information can exist outside the scope of this schedule, if it meets the above criteria.
Likewise, if information deemed confidential in the agreement is no longer confidential or commercially sensitive, it is then potentially subject to disclosure.
Under condition 12 of the Environmental Information Regulations 2004, information is deemed exempt from disclosure where the disclosure of that information would “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;”
In addition, information created by the Service Provider may also be exempt if Birmingham City Council considers that the disclosure of that information may prejudice the intellectual property rights of the Service Provider. This will only occur where Birmingham City Council considers that the approach or the information belonging to the Service Provider contained in the agreement would be likely to infringe their, the Service Provider’s, intellectual property rights and that the detriment caused by the release outweighs the public interest in being open and transparent as to public agreements.
This exemption is set out in regulation 12(5)(c) of the EIR, which states that “a public authority may refuse to disclose information to the extent that its disclosure would adversely affect:-
(c)intellectual property rights:”
It is noted that there are a number of other Highways PFI procurement processes running in other local authorities, and Birmingham City Council understands that Amey plc, the successful tender and Service Provider, is or will be competing for some of those contracts. Accordingly, Birmingham City Council is mindful that the Service Provider may wish to re-use some of the information, such as their business model, in proposals for their other tenders, and that the disclosure of the agreement in its entirety, or of key information would have a detrimental impact on their ability to compete for these other contracts.
The presumption is that the public have a right to know what public funds are being spent on, and as such, Birmingham City Council has sought to disclose information except where it considers that the information is exempt under one or more of the exemptions set out in the Environmental Information Regulations and that the public interest lies in disclosure as opposed to withholding the information.
Please note that the disclosure of the information in the agreement and schedules is for information only and that the information is protected by copyright belonging not just to Birmingham City Council but also to the Service Provider and other third parties.
Accordingly, any copying, reproduction or distribution for purposes other than Permitted uses as set out in the Copyright, Designs and Patents Act is prohibited without the prior written consent of all the intellectual property owners. Should you require details of the respective intellectual property owners, please contact Birmingham City Council.
View and download copies of the Highways PFI Agreement, Schedules and Appendices.