1.12. CBDC replied on 18 October. In answer to questions (i), (ii) and (iii), they said that the detailed composition of the £5.7 million budget was an operational matter for CBDC. The information requested at question (iv) was also an operational matter for CBDC, in discussion with whatever bodies were involved with the project when CBDC was wound up. In reply to question (v), CBDC said that studies undertaken before the preparation of the ES were referred to in the ES.
1.13. Mr B wrote back on 30 October. Citing the Code, he repeated the interest group's request for information. In their reply of 31 October, CBDC referred him to their letter of 18 October, which they said answered all the interest group's questions.
Back to top
1.14. On 11 November Mr B wrote to the Chief Executive of CBDC, complaining that the request for information had not been met. He noted that CBDC were subject to the Code; and he said that the interest group's information requests were reasonable and specific. He asked the Chief Executive to investigate the matter and to obtain for them the information sought. The Chief Executive replied on 17 December. As regards the interest group's original questions (paragraph 1.11), he gave the following replies:
The detailed composition of the £5.7 million budget was confidential. This was because: tenders were being received for construction work; agreements were in hand for land purchase; and legal agreements associated with the power station lagoons were in place. A planning application was currently being considered; and the budget for the project might be subject to adjustment in the light of any conditions specified in the planning consent.
The budget was considered adequate in the light of the current status of the project. If and when it proved inadequate, CBDC would consider the most appropriate way to fund the scheme.
The running costs would be known when the scheme received planning approval and had been constructed.
The information sought in this question had been given immediately above, in answer to questions (ii) and (iii).
All studies and information relating to the project were encompassed in the ES. There were no other applicable studies.
Back to top
1.15. The interest group did not consider that CBDC had supplied all the information to which they were entitled; and Mr B complained, through a Member of the House of Commons, to me.
CBDC's reasons for refusing access
1.16. When giving my staff his comments on the complaint, the Chief Executive said that CBDC complied with the Code as a matter of policy; and that they had given the interest group such information as should be made available under the Code. The interest group might not have appreciated that the duty to provide information under the Code was subject to certain exemptions. Disclosure of the information requested would have had implications for the effective management and operations of CBDC, in that it might prejudice commercial and contractual rights; and it would have been premature in relation to the planned announcement or publication of fuller information, especially as the budget had not yet been finally determined.
1.17. I understand the Chief Executive to be referring in the above comments to Exemption 7(a) and Exemption 10 in Part II of the Code. Exemption 7 is headed 'Effective management and operations of the public service'; paragraph (a) reads:
'Information whose disclosure could lead to improper gain or advantage or would prejudice:
' the competitive position of a department or other public body or authority;
' negotiations or the effective conduct of personnel management, or commercial or contractual activities;
' the awarding of discretionary grants'
Back to top
Exemption 7(a) is subject to the harm test in the preamble to Part II:
'References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available'.
Exemption 10 is headed 'Publication and prematurity in relation to publication'. In the version of the Code in force at the time of the request (this exemption has subsequently been amended), Exemption 10 reads:
'Information which is or will soon be published, or whose disclosure would be premature in relation to a planned announcement or publication'.
Back to top
1.18. The Chief Executive went on to say that CBDC were involved in the acquisition of land for the reserve under proposed compulsory purchase powers. Disclosure of detailed budgetary information could affect CBDC's bargaining position to the detriment of the taxpayer and to the benefit of an individual landowner. CBDC would also be involved in a multiplicity of contracts for the construction of the reserve. As a non-departmental public body, they were required to put discrete packages of work within the project out to tender. To disclose detailed information would seriously interfere with CBDC's ability to conduct a proper and meaningful tendering process.
1.19. He added that the budget was at that time in draft form, for internal use only. It might vary, depending on the outcome of the planning process (for example, if planning permission were to be made subject to conditions). Until that process was complete, the budget had to remain in draft and could not be finalised.
Investigation
1.20. The interest group's questions (i) and (iii) (paragraph 1.11) concern the estimated capital and running costs of the reserve. My staff discovered from papers which they obtained from CBDC that some information about estimated costs was in the public domain at the time of the request. They set out to establish exactly how much. Estimates of construction costs are contained in feasibility studies for Uskmouth and Goldcliff (paragraph 1.24). The study for Uskmouth gives a breakdown of construction costs for the site, including the cost of excavating the PFA lagoons. In addition, the report by the steering group (which the investigation found had been lodged with the House of Commons library when the Secretary of State made his announcement on 17 January 1996 (paragraph 1.5)) includes a breakdown of estimates for land acquisition, construction and running costs for each of the sites considered, including the three which were finally chosen by the Secretary of State. The figures for those sites show that the estimated land and construction costs at that time exceeded the £5.7 million allocated by the Welsh Office to the project.
1.21. My staff proceeded to obtain from CBDC the estimates which were current when the interest group made their request. By that time, October 1996, CBDC had acquired a substantial part of the land needed for the reserve, including the whole of the Uskmouth site: any remaining land not acquired by agreement was to be compulsorily purchased. The figures for construction costs were based on the results of a tendering process (paragraph 1.14) which had concluded shortly before CBDC received the interest group's request. (Because of subsequent delays, new tenders were invited in the late spring of 1997.) The figures for running costs were unchanged from those in the steering group's report of October 1995.
Back to top
1.22. Question (ii) is about capital funding should the allocated budget prove inadequate and no extra money be raised through PFI. The investigation did not find that CBDC had had any plans for that contingency.
1.23. Question (iv) concerns provision for running costs once CBDC has been wound up. The investigation found confirmation, in a letter from the Welsh Office to LAW dated 19 December 1996, that under the 1980 Act (paragraph 1.10), long term arrangements for the funding of the reserve would have to be made by CBDC before they could be wound up; but it found no evidence that such arrangements had been drawn up at the time of CBDC's replies to the interest group's request.
1.24. My staff asked the interest group to explain exactly what information they had in mind at question (v). They said they were interested in any studies made after the ES had been produced, as well as any preceding it, and gave as examples: habitat design reports; feasibility studies; or baseline surveys which would provide more information about plans for the reserve, including costs. My staff asked CBDC whether any studies of that kind had been made. They learned that feasibility studies for each of the three sites had been carried out before the ES was produced. Reports of the studies for Goldcliff, produced in February 1993, and Uskmouth, in August 1995, were listed in the ES: both contained financial information on the construction of the reserve and were available on application to CBDC. Information from the feasibility study on the Saltmarsh site was included in the body of the ES.
1.25. The investigation also looked at CBDC's handling of the request. My staff found that CBDC had produced guidance for their staff on handling requests for information under the Code. The guidance provides for complaints under the Code to be dealt with under a two-stage procedure. Applicants who are dissatisfied with CBDC's response to a request are asked to write to them twice more, asking that the matter be reviewed, before considering approaching me.
Back to top
1.26. My staff found nothing to show that CBDC had had regard to the Code when considering how to reply to Mr B's first and second letters (paragraphs 1.11 to 1.13). After receiving his third letter (paragraph 1.14), they had sought guidance on the application of the Code from the Welsh Office; but no reference was made to the Code in the Chief Executive's reply to Mr B (paragraph 1.14).
Assessment
1.27. I accept that the budget for the project has yet to be finalised (paragraph 1.19). What the interest group are seeking, however, are the latest estimates of capital costs (question (i)) and running costs (question (iii)). I go on to consider whether that information is covered by the two exemptions in Part II of the Code to which the Chief Executive has referred me.
1.28. If disclosure of financial information would adversely affect the commercial or contractual activities of a body subject to the Code, that information would come within the scope of Exemption 7(a). As far as the running costs of the reserve are concerned, my investigation has established that the estimates current at the time of the interest group's request (those contained in the steering group's report of October 1995) were, at the time of that request, already in the public domain (paragraphs 1.20 and 1.21). CBDC's commercial or contractual activities could not have been adversely affected by supplying them with information that was publicly available; and there can have been no good reason for their refusing to supply it. I understand that the interest group subsequently obtained the running cost estimates (as part of the steering group's report) from LAW: I therefore asked the Chief Executive to confirm that they remain unchanged. The Chief Executive explained that the running cost estimates had remained unchanged pending the steering group's preparation of a specification for the management of the reserve. That work was underway at the time of my investigation, and before I issued my report, the Chief Executive was able to provide an updated figure which he agreed to disclose (see Annex B).
Back to top
1.29. As to capital expenditure, my investigation did not find any evidence that the estimates current at the time of the interest group's request (paragraph 1.21) had been made public at that stage. I have considered very carefully the Chief Executive's contention that the release of detailed estimates would prejudice CBDC's contractual and commercial activities. I note that such concerns did not prevent disclosure, at an earlier stage, of capital information equivalent to the greater part of what the interest group requested at question (i). I do not accept, therefore, that detailed information cannot be disclosed. It may be, however, that disclosure of estimates based on tender information—as the October 1996 ones were—would be prejudicial, if they became known to potential contractors or other interested parties. After considering all the circumstances of the case, I am prepared to accept that some, albeit limited, prejudice could occur.
Back to top
1.30. Once that is accepted as a possibility, it is necessary to go on to apply the harm test (paragraph 1.17). Any prejudice needs to be weighed against the public interest in disclosing information. In this case the public interest, in holding public bodies to account for their use of public funds, is a strong one. Detailed financial information for the early years of the project is in the public domain: if it is not regularly updated, later developments will make it obsolete and therefore misleading. That cannot be a satisfactory state of affairs. I am satisfied that any prejudice resulting from disclosure of the capital estimates is outweighed by the public interest in having accurate and up-to-date information about expenditure on the project; and, for that reason, those estimates should be disclosed unless they fall within another exemption in Part II of the Code.
1.31. That brings me to Exemption 10, which the Chief Executive also cited. I have seen no evidence that CBDC planned to publish or announce the project estimates. Indeed, the Chief Executive's comments in relation to Exemption 7(a) clearly imply that no announcement or publication was intended, because it would have prejudiced CBDC's commercial and contractual interests. Exemption 10 cannot apply unless an announcement or publication is in prospect.
1.32. As I found that the information requested at question (i) could not justifiably be withheld under either Exemption 7(a) or Exemption 10, I suggested to the Chief Executive that CBDC should provide the interest group with the current capital estimates for the project. After some debate, the Chief Executive decided to release that information (see Annex B), and I welcome his decision to do so. CBDC also helpfully provided responses to questions had the information been disclosed in October 1996 when the request was made (see Annex A).
Back to top
1.33. My investigation has not found that CBDC had any plans relevant to questions (ii) and (iv) (paragraphs 1.22 and 1.23). Paragraph 4 in Part I of the Code states that bodies bound by the Code are not required to acquire information they do not possess: from that point of view, CBDC's replies (paragraphs 1.12 and 1.14) are not in breach of the Code. However, their letter of 17 December (paragraph 1.14) was misleading because, as my investigation has established, the budget of £5.7 million was by then considered insufficient (paragraph 1.20). I criticise CBDC for their misleading reply. On a lesser point, relating to question (iv), it might have been helpful to the interest group, and would have been in the spirit of the Code, if CBDC had explained that arrangements for the long term funding of the reserve would have to be made before CBDC could be wound up (paragraphs 1.10 and 1.23). I am happy to see that CBDC have taken account of those criticisms and have provided, together with the financial information, fuller answers to those questions, again as they would have appeared in October 1996, and in May 1998.
Back to top
1.34. As to question (v), my investigation has clarified what the interest group meant by 'studies supplementary to the ES' and has established that two feasibility studies are available for disclosure (paragraph 1.24). CBDC mentioned pre-ES studies in their first reply to the interest group (paragraph 1.12), but did not say how to obtain them. I suggested to the Chief Executive that CBDC should make the Goldcliff and Uskmouth feasibility studies available to them. In reply he said that he would. I welcome that decision.
1.35. CBDC's handling of the request leaves much to be desired. Although the interest group referred to the Code in two of their letters (paragraphs 1.13 and 1.14), CBDC did not do so in any of their replies. My predecessor, in his report of an early complaint to him under the Code, said that it seemed to him good practice that, if departments refuse requests for information under the Code, they should identify in their responses the specific exemptions in Part II of the Code on which they rely (First Report—Session 1994/95 Selected Cases 1994—Volume 4 Access to Official Information). In his review of the first eight months of the Code's operation (published in December 1994 as Second Report—Session 1994/95—Access to Official Information: The first Eight Months), he added that where information has been refused, the possibility of a review under the Code needs to be made known to the person who requests the information at the time of that refusal, as does the possibility of making a complaint to the Parliamentary Ombudsman if, after the review process, the requester is still dissatisfied. CBDC did not follow either of those recommendations of good practice; and I criticise their failure to do so. My investigation found that CBDC's procedure for considering requests under the Code did not accord with the recommendation of the former House of Commons Select Committee on the Parliamentary Commissioner for Administration (published in March 1996 in Second Report—Session 1995/96—Open Government, p.84) that a single-stage review procedure should be adopted by all bodies to whom the Code applies. I suggested to the Chief Executive that CBDC should review their procedures for dealing with requests under the Code. In reply, he informed me that CBDC had not been notified of the Select Committee's recommendation until February 1997; they had now amended their complaints procedure in accordance with the revised version of the Code (which came into effect in January 1997) and would operate a single stage procedure in future. I welcome that. I do not criticise CBDC for the delay in implementing the Select Committee's recommendation, as it seems to have been owing to factors outside their control.
Back to top
Conclusion
1.36. I found that CBDC were not entitled to rely upon Exemption 7(a) and Exemption 10 in refusing information about the financial estimates for the reserve. The information requested about sources of additional funding (should the budget prove inadequate), and about running cost provision once CBDC has been wound up, could not be disclosed because it did not as yet exist. I found that CBDC could, however, have been more helpful in their replies on those points. CBDC have now agreed to release the financial information and feasibility studies, and have provided fuller answers to all of the interest group's questions. The information as it would have appeared in October 1996 is contained in Annex A, and as at May 1998 in Annex B. I see CBDC's decision to release that information as a suitable outcome to a justified complaint.
Total screening and investigation time = 75 weeks
Back to top
ANNEX A
Information disclosed by CBDC as at October 1996
(i) the latest cost estimates for land purchase and capital works; with separate costings for excavation and restoration of the PFA tips, and for restoring land on which NP retained their dumping option;
The estimates are based upon proposals for a scheme at Wentloog. However, subject to the outcome of a compulsory purchase order and planning approvals, the scheme will be implemented elsewhere, at Gwent Levels. We are currently maintaining the existing estimates but the changed circumstances could lead to different figures. The following figures are informally under consideration:-
Yes, in order to fulfil the commitment given by Parliament. Funding would be sought initially from within the overall Barrage budget of £191m; otherwise any shortfall would need to be found from elsewhere within the Corporation's overall budget at the expense of other projects or plans within the Corporation Plan.
The estimated annual running cost is £125K.
(iv) what provision was to be made to meet running costs after the Corporation had been wound up?;
Upon the wind up of the Corporation, the Corporation must agree with the relevant successor body sufficient assets (say by commuted sums, or by endowment, or by a property) to service any liability to be inherited by that successor. However, no wind up date has been determined by Government, and accordingly, no relevant successor body has been identified and no wind up proposals have been prepared.
(v) what studies had been done, supplemental to the ES, detailing the construction and maintenance of the reserve; and how copies could be obtained.
No studies have been done supplemental to the ES detailing construction and maintenance of the Reserve. However, the ES refers to feasibility studies relating to Saltmarsh, Goldcliff and Uskmouth and copies of those studies will be made available.
Internally, the officials of the Corporation are working on the following current financial information:-
These figures are not approved by the Corporation nor by the Welsh Office and comprise part of the overall review of the Barrage costs referred to below.
