‘Significant public interest’ sees county council lose £200,000 battle to block Javelin Park contract transparency

On Friday the Information Rights Tribunal ruled on the appeal by the Conservative-led authority against an earlier decision on the transparency of its £500 million contract for the controversial Javelin Park waste incinerator near Stroud.

In a major victory for councillors and campaigners, the ruling means that the council had to reveal the overwhelming majority of key information in the 1000+ page document that had previously been blacked out for reasons of “commercial sensitivity”.

Only small pieces of information in the 25-year Public Private Partnership contract with Urbaser Balfour Beatty (UBB) deemed sensitive enough will remain redacted, undermining a £200,000 tax-payer funded legal bill to keep some parts a secret.

In the decision notice, Judge Shanks rejected many of the arguments made by the county council about commercial sensitivity, ruling there had been “significant” public interest in revealing the majority of the redacted details in 2015 for reasons of transparency and accountability.

The tribunal also said the public should have been informed as to exactly what the council had agreed on their behalf, as well as the “long-term consequences” of the facility, so that residents and councillors could “properly hold the council to account”.

It also recognised some of the “genuine” concerns made by opposition parties and campaigners about the impact the incinerator could have on the environment.

“Concerns have been expressed about the Energy from Waste facility (EfW) technology chosen by the council, which those against it say may involve harmful emissions and toxic waste left over from the scrubbing process,” it said.

“Planning concerns have been expressed about the height, mass and design of the plant and the increase in heavy road traffic which will be caused along with consequential air pollution. Although we are not in any position to assess the merits of these concerns, they are clearly genuine and not frivolous.”

It also described the private financing model as “controversial” and said it understood “legitimate concerns” about the facility’s cost effectiveness and value for money.

“The contract itself is a PFI contract involving the expenditure of a great deal of public money over many years,” it continued.

“We can, we think, take judicial note of the fact that the PFI model is itself controversial, with legitimate concerns expressed about bad value for money, opacity and the tendency to load expenditure on future generations.

“Further, it is said that the structure of the contract, by requiring the council to pay for a certain amount of waste to be incinerated (the so-called "take or pay" arrangement) may have tied the council in to supply a quantity of waste which is not viable in future and may have negative environmental effect of discouraging recycling.”

After evaluating each of the public interest cases for disclosing the contract, it concluded: “Given those considerations, in our view there was a significant public interest in the disclosure of the entire contract, in the interests both of transparency and accountability.

“I.e. to enable the public to be informed as to exactly what the council had agreed on their behalf and its long-term consequences and to hold it properly to account, in particular through council elections."

The tribunal authors said this transparency had been especially necessary during the debate in 2015 on whether or not to cancel the quarter of a century long contract.

“The controversy was particularly intense and there was a danger that the whole contract would have to be terminated at a cost, according to the council of up to £100 million,” the document says.

“At that stage, in our view, the council's obligation to act transparency was particularly strong as was the public interest in the exact position in relation to the compensation payable in so far as the contract contained relevant provisions."

On the issue of whether sections of the contract should have been selectively disclosed, the tribunal stated: “We make clear that we are not suggesting that the exercise is an 'all or nothing' one.

“All we are doing is recognising that the provisions which the council seeks to withhold are part of a greater interlocking whole and must inevitably be seen in that context."

It added that the fact GCC published 95 per cent of the document on its website had no relevance in the argument for not publishing the remaining five per cent.

It concluded: “Taking into account these considerations in our view there was a significant public interest in the disclosure of the entire contract in April 2015, and it was particularly weighty in relation to provisions relevant to the costs of termination, the financial cost and benefit of the project overall for the council and the amount of residual waste that the council was required to offer to UBB.”

Responding to the tribunal’s ruling, Cllr Ray Theodoulou, deputy leader of the council, stuck to his guns about the benefits of the facility and said the decision was a positive one.

“This is good news. It clarifies exactly what information we are required to publish – and is clear that key commercially-sensitive information can be protected,” he said.

“We know of a number of councils across the country that are appealing against similar rulings – so this helps us all know what the legal rules are here.”

Despite backing the £200,000 legal bill for the appeal, the Conservative councillor also said he was now “really pleased to be able finally to publish the information”.

“It makes clear what we’ve said all along - that the energy from the waste facility is great value for money for taxpayers, that it supports recycling, and that there are no penalty clauses,” he added.

“The new facility will save taxpayers over £100 million, make enough clean electricity to power 25,000 homes and reduce carbon emissions by 40,000 tonnes.

“UBB has made good progress on construction and the facility will be operational in 2019.”

The original request for an unredacted copy of the contract was made under the Environmental Information Regulations - and was fought by the council on the grounds of Intellectual Property Rights, and Commercial Confidentiality.

GCC had argued the public interest in ensuring the council’s commercial confidentiality had outweighed that of publishing the redacted information.

Jojo Mehta from campaign group 38 Degrees said: “The tribunal's decision is a major moral victory for the public interest, as well as a significant legal precedent, since there are at least two other county councils involved in similar Freedom of Information cases.”

Gerald Hartley, chair of GlosVAIN, which has fought the incinerator project since its conception, said: “The Information tribunal has overwhelmingly rejected the council’s appeal against the Information Commissioner’s decision.

“Indeed, in some instances, the tribunal has ordered even more information be released than the Commissioner required. The Tribunal confirms a few exceptions and those are predominantly to protect UBB’s genuine commercial interests or personnel details.

“This judgement challenges GCC’s exaggeration of its commercial role and rejects its shunning of transparency and public interest. Seen together with its failure to maintain the contract’s confidentiality, the Conservative cabinet has lost all credibility.

“It is exposed as an anti-democratic body, guided by expensive consultants and legal advice, all paid for by us.”

Key pieces of information that GCC must now reveal include projected savings, pricing for gate fees, plans for unitary charges and schedules.

This includes electricity payments, ‘off take’ contracts, insurance, time scales, termination of the contract, future surveys, base tonnage, capital expenditure and the planned commencement and readiness date.

Councillors and campaigners are now beginning to sift through this lump of information to analyse what it means for the county.

They have been fighting for access to this contract since 2015, when their first Freedom of Information Request was refused.