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10 June 2013 15:57 To: 'Mikey Smith' Cc: FOI <FOI@scarborough.gov.

uk> FOIA2574 Response


1 Attachment, 1.1 MB

Dear Mr Smith Thank you for your request for information which has been dealt with under the Freedom of Information Act 2000 (FOIA). As per my previous email I apologise for the late response to your request and acknowledge that the Council has not complied with the 20 working day deadline. You requested the following information:

1) All information held by the council regarding the running costs of Scarborough Spa and Whitby Pavilion

2) All correspondence between councillors and council officers and Sheffield International Venues, SIV Events Ltd and Sheffield City Trust For all of the above, please provide information for the last three years. If this falls outside costs limits, please provide information for the last 2 years. If this still falls outside cost limits, please provide only data relating to 2), for the longest possible period.
Response Please note that any information disclosed under the auspices of the FOIA is disclosed into the public domain, and not merely to the applicant. It is this perspective which must be taken when considering and dealing with a request. As you are undoubtedly aware, in 2012 the Council engaged Sheffield International Venues (SIV) to take on the running of the Spa and Whitby Pavilion which is subject to a 10 year legal agreement. This followed a lengthy and detailed tender exercise. As such, the Council does not hold information regarding the running costs post SIV taking on the venues. Please find attached to this email a breakdown of the running costs of both the Spa and the Whitby Pavilion for the 3 years prior to SIV taking on the running of these venues. Please note that figures in brackets represent credits (or income).

With reference to the second part of your request, the Council does hold relevant information, however your request is wide in scope and covers information which is likely to be held in numerous locations. In the first instance it is the Council's position that section 12 of the FOIA is engaged (which is explained further below), however even if it were not, much (if not all) of the information requested would be exempt from disclosure under a number of other exemptions (which is also explained further below). Exemptions Section 12(1) states: Section 1(1) [of the FOIA] does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit. The 'appropriate limit' is defined within the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 ('the Regulations'). Regulation 3(3) states that this limit is 450. Regulation 4(4) states that costs are to be estimated at a rate of 25 per hour. The appropriate limit therefore equates to 18 individual man hours. For the purposes of the estimate, under regulation 4(3) the Council may take into account the following: the costs it reasonably expects to incur in relation to the request in- (a) determining whether it holds the information; (b) locating the information, or a document which may contain the information; (c) retrieving the information, or a document which may contain the information; and (d) extracting the information from a document containing it. I can state that the Council does hold information relating to the second part of your request, (being correspondence (emails, letters etc.) between Councillors and Officers and SIV, SIV Events Ltd and Sheffield City Trust), however it is our position that the costs in complying with this part of your request would exceed the appropriate limit, whether aggregated or alone, and regardless of whether the information covers a period of 3 years or some shorter period. An electronic and a manual search of documents would have to take place at a number of

sites. Once this was complete, the relevant information would have to be retrieved and then manually extracted, which would also take a considerable amount of time. Determining whether the information is held, then locating, retrieving and extracting the same would therefore exceed the appropriate limit. Ordinarily we would provide advice as to how you may bring your request within the appropriate limit, however in this instance this is unlikely to be of assistance. The reason being that even if you reduced the time period over which you have requested correspondence (presently 3 years), a broadly similar search and extraction etc. exercise would probably have to be completed. Furthermore, it is also the Council's position that some (if not all) of the information would be exempt in any case under a number of other exemptions, which I set out briefly here (all references to sections are to sections of the FOIA). Section 41 - Information provided in confidence This applies where information was supplied to the Council by a third party, and disclosure of which would constitute an actionable breach of confidence. Naturally SIV etc. were required to provide the Council with various information as part of the tender process. This included confidential material which was provided so as to enable the Council to assess SIV's bid properly, and for the purposes of negotiating, drafting and agreeing a contract. Disclosure of this information into the public domain is likely to constitute a breach of confidence actionable by SIV etc. Section 42 - Legal professional privilege Both the Council and SIV etc. engaged lawyers to deal with the agreement and any legal issues. There is various correspondence between lawyers and the parties which is subject to legal professional privilege. Section 43(2) - Commercial interests This exemption applies where disclosure of the requested information would or would be likely to prejudice the commercial interests of any person (including this Council). Some of the information may be prejudicial to SIV's commercial interests, particularly pricing, operations and specific methodology etc. I must make it clear however that we have not at this time sought the views of SIV as to the application of this exemption. Disclosure of this information would also likely be prejudicial to the Council in a number of ways. In the first instance, SIV may terminate their contract with the Council, which would lead to a further tendering exercise. Other parties (and those unsuccessful bidders) may not wish to take part in this process because they believe their information may be

disclosed. This then distorts the tender process and leaves the Council with bids which do not represent best value, thus impacting upon the Council and the residents of the borough. There may also be claims for compensation against the Council. In a wider context, if the Council were to start disclosing information of this type, there is likely to be an impact upon the Council's ability to do business with third parties across the whole range of Council activities. Parties may not wish to treat with the Council due to a belief that we will disclose their information. Again, significantly distorts the procurement exercise and would not support best value for the Council or its residents. I should add that the Council has already made available various information about the outsourcing of the running of these venues, which is contained in various documents (including reports to committees), and is available on the Council's website www.scarborough.gov.uk Review If you are unhappy with the service you have received in relation to your request and wish to make a complaint or request a review of our decision, you should write to The Freedom of Information Officer, Scarborough Borough Council, Town Hall, St Nicholas Street, Scarborough, North Yorkshire, YO11 2HG or email foi@scarborough.gov.uk. If you are not content with the outcome of your complaint, you may apply directly to the Information Commissioner for a decision. Generally, the Information Commissioners Office cannot make a decision unless you have exhausted the complaints procedure provided by Scarborough Borough Council. The Information Commissioner can be contacted at: The Information Commissioners Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF | Tel: 01625 545745 | Fax: 01625 524510 | Web: www.ico.org.uk. Yours sincerely

Office: Town Hall, St Nicholas Street, Scarborough, North Yorkshire. YO11 2HG Business hours: 8.30am to 5.00pm, Monday to Friday, excluding Bank Holidays Winner - LGC Awards 2012