The Freedom of Information Act 2000 (FoIA), is a simple piece of legislation. Pretty much anybody can make a request for information to a public authority under the FoIA legislation.
Recently we understand that a request was sent to Kent County Council requesting copies of two PFI school contracts and schedules. Now for those of you not aware, projects funded by PFI are much higher than those funded through government borrowing. In 2018, The Department of Education, for example had estimated that the expected spend on PF2 financed schools such as the one’s in the FoI request sent to Kent, was “around 40% higher than the costs of a project financed by government borrowing.” So not value for money in any sense.
So KCC responded to the FoI request as follows:
KCC does hold the contracts, however, by way of example the KEP contract includes 164 electronic files making up the PFI Project Bible plus some schedules that are only in hard copy. The Project Agreement (without any schedules) is 192 pages. There are 34 schedules to the Project Agreement along with numerous other agreements and documents. It would take legal colleagues significantly more than the 18 hours to review and redact the information under the non-disclosure clause within these documents. Therefore, in accordance with section 12 of the Freedom of Information Act, we are not obliged to comply with your request.
KCCs response is plain wrong, and they have shoot themselves in the foot.
Here is how it is wrong.
Under s45 of the FoI Act 2000 a Code of Practice (CoP) is issued.
Under section 7 of the CoP, it states:
Interaction between section 12 (cost limit)
7.12 In some cases, responding to the request is so burdensome for the public authority in terms of resources and time that the request can be refused under section 14(1). This is likely to apply in cases where it would create a very significant burden for the public authority to:
● prepare the information for publication;
● redact the information for disclosure;
● consult third parties;
● apply exemptions.
7.13 It is not possible to use section 12 (cost limit) to refuse a request based on the above factors.
However, KCC have applied cost limits by using s12 (review and redact) in their response.
Also KCC, said they did NOT hold the information requested. So that should have been the end of it. If they don’t hold it they couldn’t then go onto use s12 (cost limits), but they did.
It’s strange that KCC do not hold any contracts or schedules of the PFI contracts to build the schools here in Kent.
If as they say they don’t hold the information requested, how then can they know when the provider is in breach of the contract?
The obvious answer is they can’t. So it’s not possible to know if the provider who has the contract with KCC is doing anything wrong. That cannot be good for the kids at the schools, or the Kent taxpayer, who obviously cannot know if they are getting value for money.
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