FOIA request

John de Lucy
Head of Estates & Facilities
The British Library
96 Euston Road
London NW1 2DB

January 2, 2005

FOIA REQUEST FOR WIFI CONTRACT INFORMATION

Dear Mr de Lucy

Thank you for your letter of 15 November 2004 in which you responded negatively to my request for information. I make my request again under the new Freedom of Information Act 2000 for the following:

  • 1) The contract between the British Library and the vendor(s) responsible for providing WiFi access and service.
  • 2) Bids to tender for WiFi service
  • 3) Minutes of meetings where WiFi and WiFi contracts and tenders were discussed.
  • 4) A financial breakdown of the costs and revenue resulting from WiFi
  • .

In your previous letter you refused to release the contracts with Building Zones and BZ’s subcontractor due to ‘commercial sensitivity.’ A public authority cannot contract out of its obligations under the FOIA. As I am sure you know, the exemption for commercial interest under the Act (section 43) is a qualified exemption, which means information can only be withheld if it is in the public’s interest.

The public have an interest in knowing the terms of contracts awarded by public authorities, whether or not public money changes hands immediately. It is incorrect to state that this contract is at ‘no cost to the public purse’ because the public has to pay higher-than-average fees to use this service. Over time it could transpire that the public has had to pay substantially more under this agreement than if the service was publicly funded initially. I would compare this PFI system to that used in many American libraries where the cost of installation is paid for by the public purse but then the service is provided to users at no charge. Thus more people benefit and the library as a whole benefits because more of its own internet-enabled computers are available for those people without their own computers.

Effectively, the British Library – a public authority paid for through public taxes – has granted a monopoly for service provision to a private company. The public have an interest in ensuring that this structure for providing wireless service is the one that best serves their needs. For example, a public collective might have been a more viable and cost-efficient option. An accurate analysis can only be ascertained by making the contracts public. How can we be confident that we will not be charged even more usurious rates to use this basic service in future? In addition, the public have an interest in knowing the reasons behind the decision to award this contract to ensure its propriety.

I would point you to the Information Commissioner’s guidance on contracts made with public authorities: Awareness Guidance 5 and Awareness Guidance 4 appendix (see note at end). Richard Thomas has stated as early as last week that contracts awarded by public authorities should be disclosed1.

Although you write that WiFi in the UK is ‘a highly competitive arena’ you then state that BZ made its proposition at a time ‘when no other private sector organisation was willing or able to do the same.’ This lack of commercial competition further erodes the commercial confidence exemption. As the guidance states: ‘Where a company enjoys a monopoly over the provision of the goods or services in question it is less likely that releasing the information will have a prejudicial impact on that company.’2

If you are relying on section 41 (the exemption for legal breach of confidence) then I would like to know the following:
· When these confidentiality agreements were agreed
· All correspondence and email in which these confidentiality agreements were discussed.
· The precise wording of the confidentiality agreements

I ask these questions because the Lord Chancellor’s draft guidance on FOI implementation specifically states that public authorities should NOT enter into these types of agreements; they go directly against the spirit of the laws of disclosure. I would also point to the Information Commissioner’s guidance on accepting blanket commercial confidentiality agreements: ‘Unless confidentiality clauses are necessary or reasonable, there is a real risk that, in the event of a complaint, the Commissioner would order disclosure in any case.’ 3

Finally, within the law of confidence there is also a public interest test. Therefore, the contracts should be disclosed in full. If any parts are redacted they must be for information that can be proven to be a legal breach of confidence in court, and only then where secrecy can be shown to be in the public interest. These are difficult positions to argue when public money is at stake or where a public authority is offering a private company a monopoly to charge its stakeholders.

I understand that under the act, I am entitled to a response within 20 working days. I would be grateful if you could confirm in writing that you have received this request.

Regards,
Heather Brooke
—-
1. ‘I expect the public sector to rise to this challenge’ , The Guardian, 30 December 2004

2. ‘Freedom of Information Awareness Guidance 5: Commercial Interests’ Office of the Information Commissioner, Page 6, http://www.informationcommissioner.gov.uk/eventual.aspx?id=1024

3. ibid, p10

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