Victria Park "Confidentiality Agreement", what does it actually say? Options

[Simon Kirby]

We've been told a few times that the town council would like to publish the hydrogeological reports but are constrained by a confidentiality agreement:

Cracks appeared in the town centre park and nearby pavements and homes in the summer of 2010, shortly after water extraction works were being undertaken by Costain to build Parkway’s underground car park. A hydrogeological survey to establish the cause was conducted by the council soon after, at a cost of £9,000 to the taxpayers.

However, despite numerous requests from both the Newbury Weekly News and local residents, the survey will not be made public as it contains commercially-sensitive information and is bound by a confidentiality agreement with Costain, council officials say.

The town council's story about not publishing the hydrogeological reports because it was bound by a "confidentiality agreement" always looked suspect to me. I know from personal experience how the town council can be dishonest and evasive, so when the council refused a friend's request for the "confidentiality agreement" and reports I helped him ask for a review and then make a complaint to the Information Commissioner who made a decision on 4 August (see decision FS50531987). The Commissioner has decided that the town council were wrong to refuse to disclose the "confidentiality agreement" and has given them until the 8th September to do so. The town council have not yet complied, and they risk being found in contempt of court if they haven't published by the 8th.

The council have dropped their insistence that the "confidentiality agreement" is the reason they haven't published the reports and have now asserted legal professional privilege in the reports. The Information Commissioner has agreed that the reports are privileged, though that decision is being appealed to the Information Tribunal. The issue is that the council appear to have mislead us all this time about being constrained by Costain from publishing the hydrogeological reports, and in refusing to disclose the "confidentiality agreement" they do at this time appear to have tried to hide their deceit.

The council are usually quite bullish with their press-releases, but they've been uncharacteristically reticent on this development, and a thorough explanation is necessary.

[Andy Capp]

What I don't understand is why facts are denied to the general public? Who's got what to hide?

[Cognosco]

What I don't understand is why facts are denied to the general public? Who's got what to hide?

When our local Authorities are economic with the truth (which is quite frequent) then we know that it is going to cost us poor plebs.
The whole Parkway Construction has been very poorly handled. The fact that the land was given away, the fact that parking fees were not entirely going where they should, the fact that the final construction was not what was on the original plans, the fact that a right of way was given away. Probably even more would come to light if it was thoroughly investigated. Most of these the public were not even made aware of until too late as per usual.

Now we are being misled regarding the Cracking. I entirely agree it does enforce the suggestion that one, if not both, of our disreputable Local Authorities have something to hide and are fighting tooth and nail to ensure the plebs do not get the chance to get it into the public domain.

[On the edge]

What indeed is confidential about a confidentiality agreement! Almost an off the peg pro forma in very common use in the IT industry. The only thing that one could be embarrassed about is the absence of one?

This whole sorry trail again only goes to demonstrate that Parish Councils simply do not have capacity or capability.

If they can't even get what is supposed to be a straightforward third party damage claim sorted quickly and without cost, what chance much bigger and much more expensive projects such as doing up derelict buildings?

As the saying goes 'they couldn't run a whelk stall' (sorry, I forgot, round here, you'd need to be in a successful market to do that)

[Andy Capp]

It annoyed me to day when reading the paper of how Julian Swift-Hook didn't agree with the decision to compel the council to submit the CA. Why not? Did the paper not ask, or did he not offer a reason?

[MontyPython]

It annoyed me to day when reading the paper of how Julian Swift-Hook didn't agree with the decision to compel the council to submit the CA. Why not? Did the paper not ask, or did he not offer a reason?

Well not surprising really as he also serves on WBC doesn't he? Therefore he has a lot to protect as he and his mates got us totally shagged with Parkway in the first place.

A politician of very low integrity IMO.

[Andy Capp]

Yes, but it just annoys me when a statement is made and no reasons are offered. Does "I don't agree" actually mean, "I would rather not", or has he a tangible argument to pose?

Irritating.

[Cognosco]

Yes, but it just annoys me when a statement is made, but no reasons offered. Does "I don't agree" actually mean, "I would rather not", or has he a tangible argument to pose?

Irritating.

Our local authorities always give the impression that it has nothing to do with precept payers anyway ergo no point in giving reasons is there?

The only way to get them to change this outlook is for people to ensure they complain vociferously rather a lot more.............I am constantly baffled as to how precept payers let them get away with it?

[Simon Kirby]

It annoyed me to day when reading the paper of how Julian Swift-Hook didn't agree with the decision to compel the council to submit the CA. Why not? Did the paper not ask, or did he not offer a reason?

I would have liked to have seen JSH's reasons too, and it's disappointing that he didn't use the opportunity to give them. The Information Commissioner is clear in the Decision Notice that the council didn't offer any justification for withholding the "confidentiality agreement", and they were required to do that back in December when the request was made, and again in January when a review of that decision was requested, and again in May when the Information Commissioner investigated their refusal, so the town council really have had every opportunity to make their argument, and if it's just that the council doesn't see why it should respect our right to freedom of information then I find that troubling.

And face it, the council have already said what's in the "confidentiality agreement", so what's the big deal in disclosing it? "The Hydrogeological reports contain data that was supplied by a third party, on condition that the overall report was not released to any other third party except for legal purposes. i.e. there is a confidentiality agreement between Newbury Town Council and the supplier of the data."

Perhaps that's not actually what the "confidentiality agreement" says. It always seemed odd to me that there was no initial suggestion that the reports were not going to be published and that the first mention of a "confidentiality agreement" was in February 2013, more than two years after the hydrogeological reports were commissioned, and it does seem really odd not to mention an agreement when the failure to publish the reports had been such a central piece of the puzzle.

There's also the rather obvious problem that the town council aren't actually relying on the "confidentiality agreement" in order to keep the hydrogeological reports secret, they are now asserting litigation privilege and that is their own choice - it rather makes a mockery out of the story that it was Costain that were preventing the council from publishing the reports. I hope the Newbury Weekly put that question to the council for an explanation.

[Andy Capp]

Quite right. And how long can this 'privilege' exist, surely it cannot remain indefinitely? This could be just a back-door method of with-holding information.

[Simon Kirby]

Quite right. And how long can this 'privilege' exist, surely it cannot remain indefinitely? This could be just a back-door method of with-holding information.

Privilege is indefinite, if the First Tier Tribunal agrees that the Council have a legitimate claim to legal professional privilege then the council can't ever be compelled to disclose the hydrogeological reports if they choose not to.

It is frustrating that the council have asserted privilege because when the council were saying that they couldn't disclose the reports due to the "confidentiality agreement" that was likely to be overturned by the Information Commissioner because the IC looked to have agreed that the reports were information on emissions which is given special treatment by the Environmental Information Regulations and a confidentiality agreement can't prevent a public authority disclosing information on emissions. The council had tried to argue that the reports weren't even environmental information and weren't covered by the EIR and that the request for information was just covered by the Freedom of Information Act but it was a hopeless argument and the IC gave it no truck.

It seems pretty obvious to me that the council never wanted to disclose the reports and it's possible that they suggested the "confidentiality agreement" to Costain so that it wouldn't be obvious that it was the council all the time that were hiding the reports. However, it's far from obvious why the council would want to hide the reports when they've already shown them to Costain.

[Andy Capp]

Well if they have shown them to Costain, that must materially affect the professional privilege decision?

[Simon Kirby]

Well if they have shown them to Costain, that must materially affect the professional privilege decision?

No, not really. The IC isn't bothered if privilege has been waived, only if the privilege has been lost altogether by sharing the reports without restriction to the world at large, and that might have happened if the council has shared the reports without the right caveats, but that's not likely.

The only challenge as I see it is that litigation privilege doesn't actually apply, and that's what the first tier tribunal will have to decide.

If I read JSH's comments right in tonight's paper the council are not going to appeal the decision to order them to disclose the "confidentiality agreement", but I have to say that it is reprehensible that the council have still not disclosed the agreement when they were ordered to do so one month ago, and that holding onto the agreement for as long as they possibly can is defying the spirit of open and transparent government.

[Simon Kirby]

On the web site today, Dan Cooper's article from the Newbury Weekly

The Information Commissioner gave the council 35 days from the date of his Decision to disclose the "confidentiality agreement", and with the Decision dated 4 August the deadline for disclosing the information is today.

I don’t agree with the ICO’s decision to require the publication of the confidentiality agreement, but I will of course ensure that the town council complies with the decision by sending the document to the resident.

The town council have not yet complied with the Information Commissioner's Decision and the "confidentiality agreement" has not so far been disclosed.

[MontyPython]

The town council have not yet complied with the Information Commissioner's Decision and the "confidentiality agreement" has not so far been disclosed.

I take it you are "the resident" then?

[Simon Kirby]

I take it you are "the resident" then?

As it happens, no.

[MontyPython]

As it happens, no.

The article states that NTC are to inform the resident of the confidentiality clause, not the public.

A usual sly response from JSH and his band!

[Simon Kirby]

The article states that NTC are to inform the resident of the confidentiality clause, not the public.

A usual sly response from JSH and his band!

I asked the "resident" last night before posting and he hadn't received it. The request was made from the WhatDoTheyKnow.com web site so the reply should have been sent there, and it isn't there yet.

[Cognosco]

I asked the "resident" last night before posting and he hadn't received it. The request was made from the WhatDoTheyKnow.com web site so the reply should have been sent there, and it isn't there yet.

Anything received yet Simon? Or are they flouting yet more laws?

[Andy Capp]

Anything received yet Simon? Or are they flouting yet more laws?

Well, seemingly contemptuous anyway.