Regular readers will recall our recent post concerning a request we made, under the Freedom of Information Act, for copies of minutes of monthly meetings between KCTMO, their contractors Rydons, and the project architects Studio E, at which issues concerning the Grenfell Tower Improvement Works are regularly discussed.
In that earlier post we reproduced the key section of the TMO’s refusal notice we had received in December 2014 from Company Secretary Fola Kafidya, which stated;
“We are not releasing this information because it is exempt from the Freedom of Information Act 2000 as it is not information held on behalf of a public authority or by the TMO on behalf of a public authority. The Freedom of Information Act 2000 relates to information held on behalf of public authorities.”
This statement immediately raises the question of how Ms Kafidya would determine whether or not specific information held by the TMO is, or is not, held on behalf of the local authority. The logical implication of classifying this particular information as exempt on such grounds is that she could classify any or all information that the TMO holds as exempt on the same basis, which means by extension that the TMO could consider itself to be totally exempt from the provisions of the Act, despite the fact that, as the Local Authority’s managing agent for all Council owned housing, it can be convincingly argued that all information it holds is held on behalf of the Local Authority.
Strangely, the original refusal notice then went on to invoke one of the few exemptions allowed under the Act (section 43 subsection 2), claiming that;
” the TMO’s commercial communications with its contractors are sensitive and the disclosure of such commercial communication would, or would be likely to, prejudice the commercial interests of the contractor.”
From this the following question immediately arises: if the TMO truly believed that the information in question was not held on behalf of the Local Authority, and was therefore exempt from the Freedom of Infomation Act, then why would they find it necessary to claim also that the information requested was exempt under a subsection of the Act, clearly implying that it was in fact subject to the requirements of the Act?
We wrote back challenging the transparently absurd and contradictory basis of their decision and pointing out that the TMO, as the housing managment agent of the Local Authority, cannot therefore be exempt from the Act, and requesting a revision (ie a reversal) of their decision on this basis.
In our earlier blog we had provided documentary evidence from the TMO website showing beyond doubt that the TMO has accepted since 2005 that it is subject to the Freedom of Information Act and promising our readers that we would provide an update as soon as we had received a revised final decision from Ms Kafidya.
To our great surprise we received that final decision, another refusal, within a couple of days. This hardly seems to have been an adequate timeframe within which to conduct a proper and comprehensive review of such a decision, but at least we weren’t forced to wait, as is usual, the full month allowed by law for the TMO to reconsider their refusal.
To our even greater surprise, Ms Kafidya had now abandoned the pretense that the information in question, and therefore the TMO, was exempt from the Act. The sole reason given for the revised and final refusal was as follows;
“ I note your challenge and your point of view on my response in December 2014…
Although Rydons is providing a service in the public interest, the TMO’s commercial communications with its contractors are sensitive and the disclosure of such commercial communication would, or would be likely to, prejudice the commercial interests of the contractor. By virtue of section 43(2) of the Freedom of Information Act, such information is exempt from disclosure. As a result, we are unable to disclose the information you have requested. In accordance with the Freedom of Information Act 2000 this email acts as a Refusal Notice.”
Readers should note that section 43(2) of the Freedom of Information Act is just about the only exemption that can be invoked in these circumstances and is, in our opinion, the most misused section of the Act, being routinely invoked as a cloak of secrecy by local authorities countrywide to discourage requests for information and to avoid any possible embarrassment that might arise from disclosure of the detail of even the most mundane local authority business. Indeed we have previously complained, in November 2013, about just such behaviour by a senior TMO manager, Peter Maddison. Although our complaint was fully upheld by the TMO’s Policy and Improvement Manager, Janet Seward, we gained very little from this as Maddison subsequently surrendered a document so heavily redacted that it was effectively useless;
In any case such a complete abandonment of Ms Kafidya’s reason for refusal and the fundamental contradiction of that reason inherent in her new position is astonishing. How does a professional Company Secretary move, without explanation, from implying that the TMO might be completely exempt from the provisions of the Freedom of Information Act, to a refusal notice which relies instead solely on one of the few exemptions allowed under the Act? Furthermore, this contradiction between the reasons offered for witholding the requested documents strongly suggests that neither reason is legitimate and that the decision to withold was taken first, and the reasons offered for the decision were cynically, and opportunistically, conjured up afterwards based on the limited wiggle rooom allowed under the Act.
For the sake of clarity, please note that we have no interest in compromising the legitimate internal finances or commercial interests of the contractor Rydons. Our interest is solely in the disposal of the public money provided by the Council to the TMO to fund the works and whether this money was used competently, correctly and efficiently. We believe we have good reason to doubt whether all was as it should have been in the planning of the Grenfell Tower works, in the process by which the contract was awarded, and in the consequences for Grenfell Tower residents of how all of this was handled, and continues to be handled, by the Council and the TMO.
It is a matter of record that the budget for these works was set by the Council at £9.7 million in 2013 and the contract was offered initially to Leadbitters, the company who already held the contract for the Kensington Academy and Leisure Centre development. Leadbitters independent analysis at that time costed the works at more than £11 million. The two parties were subsequently unable to reach an accommodation over the £1.6 million difference in their costing analyses. At this point Leadbitters concluded they could not deliver the project within the Council’s budget and so they refused the contract. A competitive tendering process was then initiated and the contract was subsequently awarded to Rydons.
However, since the start of the actual works Grenfell Tower residents have complained repeatedly about poor design and workmanship and an apparent indifference on the part of the contractor’s and their workforce to the concerns of residents in general, and the more vulnerable residents in particular. This leads us to strongly suspect that the contract may have been inappropriately awarded to the cheapest bidder in the tendering process regardless of the quality of the works that would subsequently be delivered and the consequences for Grenfell Tower residents.
Based on the inconsistent and mutually contradictory refusal notices issued by the TMO Company Secretary we can’t help but wonder suspect that either she is incompetent, with a poor understanding of the Freedom of Information Act and its fundamental presumption in favour of disclosure of information, or a cynical opportunist prepared to misuse the few exemptions allowed under the Act to frustrate those requesting information, or to protect the RBKC and TMO from potential embarrassment or scandal, rather than to protect the contractor Rydons from any actual harm. Her attempt to claim that information held by the TMO is exempt from the Freedom of Information Act, because it is not held on behalf of a public authority, is particularly disturbing because it is a complete travesty of the relationship of the TMO to the Local Authority, and to the social housing residents whose interests it is supposed to serve on behalf of the Local Authority. This suggests a dangerously totalitarian mindset in the higher echelons of TMO management which we would consider to be entirely unacceptable.
Finally, the recipient of a legitimate request for information under the Freedom of Information Act is required to conduct a ‘public interest test’. This means that they must decide whether the public interest is best served by disclosure of the information requested, or by witholding it. We believe that in this case the public interest can only be served by disclosure of this information via the requested documents, redacted only where absolutely necessary to protect the legitimate business concerns of Rydons. We also note that nowhere in Ms Kafidya’s refusal notices is there any mention of the public interest, or of the ‘public interest test’ required under the Act.
Having completed the rather complicated process required by the Act in our dealings with the TMO, and having been refused on both occasions by them, we are now free to appeal to the Information Commissioner’s Office to investigate the TMO’s responses and adjudicate this matter independently. We intend to do so without further delay. It is likely that we will have to wait several more months for the Commissioner’s decision but we are prepared to do so if that’s what it takes to achieve a just and reasonable outcome for the residents we represent.