25 June 2018

Gloucestershire assesses latest ICO ruling on EfW plant

Gloucestershire county council is now “going through” the latest ruling from the Information Commissioner’s Office after being ordered to publish information concerning the Javelin Park incinerator deal, writes Sarah Horton.

The county council has already said that the release of the information requested will damage the council and the authority’s contractor Urbaser Balfour Beatty (UBB). But, the county has been given up until the 12 July 2018 to publish the information, or it may face legal action for contempt of court.

The energy from waste plant is currently under construction at Haresfield, south of Gloucester. In May, UBB reported that cladding work on the main building had started, and the next phase would see the boiler being welded, the installation of the cooling tower and air pollution control equipment. Test firing of the facility is planned for March 2019.

Objectors

Objectors to the facility have kept up their protests despite construction work starting, focusing in part on the contractual arrangements between the local authority and the contractor and raising concerns with the Information Commissioner’s Office (ICO).

The UBB facility will use an inclined moving grate to transport waste across the burning zone

In 2017, Gloucestershire county council was ordered by the First Tier Tribunal to disclose information concerning the contract. The new case was produced after a local resident argued that the report provided by consultant Ernst Young was information that the tribunal had already told Gloucestershire to disclose.

The ICO ruled that, the public interest outweighed any damage to the council and UBB’s mercantile interests. UBB fears the publishing of the deal would be effectively be disclosing its “inner playbook” and would undermine the company in the future.

While the commissioner did acknowledge the disclosure could “unbalance the level playing field when UBB tenders against its competitors”, it ruled that it would be in the public’s best interest to know the information. One of the areas of concern is the selling of spare capacity, Gloucestershire wanted to keep private the pricing for the sale of spare waste capacity to third parties and the sale of electricity.

‘Best interest’

Whilst the ICO commissioner acknowledged the arguments put forward, it stated it was in the public’s best interest to have the information. The commissioner said, “It is impossible for the public to be fully aware of the overall value for money of the project in the long term if it is unable to analyse the full figures regarding costs and price estimates which the council was working from at the time of the revised project plan.

“In the end it is the electorate which must hold the Council as a whole to account and the electorate are more able to do that properly if relevant information is available to all.”

“At the heart of the argument are figures such as the price per tonne agreed with UBB”


Information Commissioner
ICO

In its ruling, the Commissioner notes, “At the heart of the argument are figures such as the price per tonne agreed with UBB, the base tonnages, the gate fee, and the budgeted price points for the future sale of third party waste accommodation and the price of electricity to third parties.”  Despite the council’s belief that this information was commercially sensitive, the commissioner noted that without this information it is impossible to properly judge whether the council has obtained value for money from the development.

Gloucestershire

Gloucestershire council commented: “We recognise the public interest in this matter and have complied with all previous ICO requests, however the legislation and guidance is unclear. We have to make sure we balance the needs of our contractors for commercial sensitivity with the desire to provide as much information as possible into the public domain.

“It is important for us to make sure that we get the best possible deal for Gloucestershire tax payers. There are details in the contract and the report which could undermine our ability to do this. We will be going through the latest ICO ruling and will respond to it in due course.”

A spokesperson from Gloucestershire also added that the incinerator is due to open in 2019 and will save taxpayers more than £100m and provide power for 25,000 homes.

A comment from UBB has been requested.

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