Freedom of Information And The Arrogance of Power

Blair FoI

On 12th April we made a request to RBKC under the Freedom of Information Act for the Part B report and minutes of the Cabinet meeting on 19th November last year at which approval was granted to lease the Westway Information Centre and the Grade II listed North Kensington Library building to Notting Hill Prep School. Predictably, the Council refused our request and we immediately responded by rejecting this decision, requesting an internal review of it, and expressing our intention of appealing to the Information Commissioner as soon as we have exhausted the Council’s sham review process.

In her capacity as the Council’s Monitoring Officer, Chief Solicitor LeVerne Parker informed us that the request had been handled under Environmental Information Regulations and the reasons she gave for her decision to withold the requested information were as follows: She claimed that the information was financially sensitive and that disclosure would compromise the financial affairs of those bidding to lease the buildings, would prejudice the Council’s economic interests and would prejudice the Council’s future negotiations. She also claimed that there were contractual matters yet to be resolved and still under discussion, disclosure of which would weaken the Councils negotiating position and would have an adverse impact on the Council’s financial position.

There are a number of problems with this explanation which were immediately apparent to us. The first is that a Key Decision Report was presented to Cabinet at the meeting in November, the confidential part of which (Part B) detailed the mutually acceptable terms already negotiated beween the Council and NHP for the lease of both buildings. The Part B recommendations were approved by Cabinet and a Key Decision authorising both lease agreements was subsequently implemented on 23rd November. The deals were therefore rubber-stamped at that point, there was no risk of compromising the bidding position of any party because the bidding process had ended, and nor were there, in our opinion, any remaining ‘contractual matters yet to be resolved and still under discussion’ as Ms Parker has claimed. These facts alone are more than enough, in our view, to completely demolish most of the foundation on which Ms Parker’s Refusal notice was constructed.

We also doubt the legitimacy of her claim that disclosure would risk prejudicing the Council’s future negotiations. To the best of our knowledge the EIR exemption which Ms Parker quoted requires the Council to establish that disclosure would certainly cause harm and that the harm caused would be so substantial as to seriously undermine the Council’s future relationships.

We seriously doubt, although in the absence of disclosure we have no way of absolutely confirming, that the witheld information meets the stringent standard required by the EIR with regard to harm caused. We are nonetheless expected, it seems, to accept entirely on faith that all parties, including the Cabinet and the Monitoring Officer, have been completely honest and unbiased in their actions throughout this whole process. This is an act of faith we are not prepared to make, and with very good reason. To start with, the manner in which the lease for the North Kensington Library building was approved was most irregular, to say the least. There was no public consultation and no open competitive tendering process, and the Council are now refusing to disclose the detail of the lease negotiations. These facts alone are enough to raise a number of warning flags.

In her reply to us Ms Parker explained that the reason for dealing with this matter under the EIR was because the agreement to lease would result in internal and external works to the buildings likely to affect land use, landscape, waste generation and disposal, water provision and drainage, energy use and noise, amongst others. This information strongly suggests that the internal works to the library building will be extensive, which we more or less knew anyway. Anyone familiar with the layout of the library would realise that to convert the interior for use as school classrooms will require extensive internal remodelling. We would suggest that such remodelling might well be so extensive as to constitute a virtual gutting and complete refit of the interior.

Neither the Council, Ms Parker, nor NHP should forget that this is a Grade II listed building of considerable historic importance. It is therefore protected by law against any works, interior or exterior, which would adversely affect its character as a building of special architectural or historical interest. Listed building controls are additional to normal planning regulations and are intended to prevent the unrestricted demolition, alteration or extension of listed buildings without the express consent of the local planning authority and/or the Secretary of State.

The refurbishment of the library building, for the sole benefit of NHP, will therefore require planning approval, and possibly the consent of the Secretary of State, to ensure that the remodelled interior fully preserves the historic character of the original. It should therefore have been subject to public consultation, particularly in light of the considerable public interest in its history and its retention as a public rather than a private resource. It could be argued also that planning approval should have been sought and secured before the Council ever agreed to lease the building to NHP. This would have necessitated public consultation at an early (ie formative) stage in the process, consistent with best practice, and would thereby have best served the Public Interest in this affair.

In fact there has been no public consultation. We have seen no documentation indicating that the Council has any intention of consulting on the future of this building, and as far as we are aware there is currently no planning application, either existing or forthcoming. We can think of no good reason why the Council has chosen to follow the perverse and contrary route it has followed and, in our view, this whole process stinks to high heaven!

We believe that the response of the Monitoring Officer to the concerns we raised was entirely predictable. It seems to us that, whenever there is the least possibility that the actions of the Council might cause them any embarrassment, they invariably resort to this tactic of refusing to disclose, usually on the slenderest of pretexts. However, in both the Freedom of Information Act and the Environmental Information Regulations there is a strong presumption in favour of disclosure. Very few exemptions are allowed, and the exemptions are almost invariably subject to a public interest test, which means that unless the Council can make a compelling case for non-disclosure they have a duty to disclose the requested information.

Perversely they opted instead to issue a Refusal Notice, a tactic they have used against us on numerous occasions. We have never succeeded in having such a Refusal Notice overturned by the Council on review, but every time that we have subsequently appealed to the Information Commissioner we have won the appeal and the Council has been ordered to disclose. This therefore has all the appearance of a cynical game the Council plays, the main point of which appears to be to discourage Freedom of Information requests by making the process as lengthy, frustrating and complicated as possible for the applicant. It also appears more than likely to be an expression by the Council of their fundamental contempt for the right of the public to have access to the inner workings of Cabinet under Freedom of Information legislation, which, in our view, has made a major contribution in recent years to public empowerment and real grassroots democracy.

Finally, we can think of no better way of finishing this post than by quoting the words of Tony Blair, the former Labour prime minister under whose leadership the Freedom of Information Act was passed into law. We believe his words, taken from his autobiography published after he left domestic politics, are deeply revealing of the attitudes of those in power to the Freedom of Information Act and the fundamental right-to-know it accords to the British public:

“Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it. Once I appreciated the full enormity of the blunder, I used to say – more than a little unfairly – to any civil servant who would listen: Where was Sir Humphrey when I needed him? We had legislated in the first throes of power. How could you, knowing what you know, have allowed us to do such a thing so utterly undermining of sensible government?”

‘Nuff said?

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