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posted 9th August 2018
Question: What do you think about the recent controversy surrounding Horsham District Council’s secrecy?
Answer: There is no doubt about this secrecy in our recent experience. The Council are a metaphorical million miles away from the claims made in their Annual Governance statement re. transparency and the statements made by their new Chief Executive in the local press about the Freedom of Information route. Back in March, under freedom of Information we asked for :-
1) The evaluation matrix, scores and other documents relating to the Horsham Old Town hall decision between Bill's Restaurant and W. J. King when bidding for the Old Town Hall.
After the 20 days went by we reminded the Information Governance team who apologised and said that they had to retrieve the information from offsite. Eventually, this part of the request was only partially met by the Council on 27th April 2018 in that it provided us with a summary report to Council that was already in the public domain and would have been very much available at the Council offices we think. Logic sensibly dictates that for there to be a summary report, there must have been Invitations To Tender by the Council and documents received in accordance with the ITT from Bill's Restaurant and W J King Ltd. We have still not been provided with those documents as requested under “other documents”.
Following our request for an internal review to the Council and a strong letter from the Information Commissioners Office urging HDC to respond (having widely missed another 20 day deadline), we received the following e-mail from the Council:-
From: FOI <FOI@horsham.gov.uk>
Date: 3 July 2018 at 15:38:52 BST
Subject: RE Review and ICO Complaint - Bills restaurant/Horsham old town hall HDCIR:2331
RE – Your complaint to the ICO:Case Reference Number FS50754836
Dear Mr Mayfield
The Council apologises for the delay in responding to your Internal Review. It is our view that the requested information is commercially sensitive. We have asked Bills to provide us with more information and are waiting for their answer. We have asked Bills to provide us with an answer so we can respond to you by 13 July 2018.
Once we have received this information we will provide you with a response to your Internal Review.
Yours sincerely Information Governance Team
However, this e-mail from HDC did not make sense for a number of reasons:-
a) There was no similar declared intention by the Council to contact W J King re. the alleged commercial sensitivity and they would have been equally affected by this part of the request. It also seemed strange that Bill's was being asked to dictate the Council's information Governance policy.
b) There was already a precedent of the Council releasing (within a few months of that former bid process taking place) all of the requested documents of Bill's Restaurant versus Gondola previously. There should have been no valid reason under FOI law that I could see for the inconsistent approach therefore. Furthermore, the Bill's versus W J King Ltd bids were now some six years old and could not sensibly be commercially sensitive we feel.
c) We were aware the Council routinely reminds bidders for Council contracts that bids might be subject to FOI requests under the Council's standing orders.
With these points in mind, we therefore responded to the 3rd July e-mail from the Council two days later, on 5th July as per Appendix A below.
Following my e-mail of 5th July, the Council subsequently gave their internal review decision to part 1) of my request on 13th July saying somewhat bizarrely :-
"Your request asked for:
1) The evaluation matrix, scores and other documents relating to the Horsham Old Town Hall decision between Bill’s Restaurant and W. J. King when bidding for the Old Town Hall
These documents were sent as part of the Council’s original response."
However, as above, only one document (rather than "documents") i.e. the overall summary report to Council had been received in response to the initial request. The other documents i.e. the ITT, the bid documents received by the Council from Bill's and W J King; and the other Council documents relating to the detailed evaluation (as was previously supplied by the Council in Bill's versus Gondola) still remain outstanding.
The second part of the request was:-
2) Details of any rent reviews for the Old Town Hall since Bill's opened and the annual rent to be received from Bill's this financial year 2017/2018.
The Council originally claimed in its original response that this information "... would prejudice the commercial interests of the Council."HDC then argued in contradiction to this (via their e-mail of 3rd July) that they were “of the view that the information requested [apparently both 1) and 2)] was commercially sensitive and they therefore needed to contact Bill's.
When the internal review decision finally came (after my Appendix A reply) the Council said:
“The Council first response applied the exemption at Section 43(2) of the FOIA - Prejudice to commercial interests. Having reviewed this matter, I can advise you that all the information requested in question 2 above is publicly available from the Land Registry on payment of a fee. In accordance with the Council’s duty to provide assistance to requestors I have attached a copy of the lease obtained from the Land Registry this includes the figure of second initial rent sum payable this financial year.
This concludes the review process."
However, we did not request a copy of the Old Town Hall lease as we already possessed a copy of this lease. Under the terms of that lease, we were already aware that either Bill's or HDC could request a rent review for the Old Town Hall but the rent should be at least £80,000 after 21st September 2017. In the absence of the Council properly meeting this part of the FOI request, it remains a distinct possibility that neither Bill’s, nor the Council, has requested such a rent review and that HDC didn’t collect the increased rent that was due.
After four months of Council squirming, we have now had to trouble the Information Commissioner’s Office once more to try and dig out the answers. We also contacted the auditors of the HDC accounts to see if we could obtain the answer via another route to the increased rental (or not!) question. It was a simple question, just a simple figure from the HDC 2017/18 accounts, but nothing doing! However, in looking down this route, many concerns about the audit process arose.
More about this in a weeks time.