To answer questions from members of the public – submitted in writing or by electronic mail no later than 5.00pm, 2 working days before the meeting.
Mr P Nicholson submitted the following question,
“What public and restricted evidence was provided to the Overview and Scrutiny Committee so that it could be assured that the Executive was not carrying out policies that are a breach of procurement law in the competitive tender process that resulted in Allerdale Borough Council forming a partnership with Lucent Allerdale Partnership SARL?”
Councillor Pitcher responded
“The Allerdale Investment Partnership (AIP) – agreed to establish a Joint Venture Partnership and associated delegated powers report was considered by the Executive on 5 February 2014. Paragraph 9 entitled Procurement Considerations is included with the open part of the report. The decision was called-in by Scrutiny who considered the report on the 24th February 2014. Following consideration of all the information Members were reassured that the work carried out and advice received was sufficient to ensure that risks to the Council were managed. Members were happy to support the Executives decision made on 5 February 2014”.
Mr P Nicholson then asked this follow up question,
“Is there a justification for restricting any such evidence about AIP to the public and to councillors, especially when the Information Commissioner has ruled in ‘Peterborough Investment Partnership freedom of Information ruling 2017’, an almost identical partnership with Lucent, paragraph 54: ‘the commissioner finds that the council has failed to demonstrate that disclosing the information would prejudice its commercial interest and that the exemption is not, therefore, engaged?”
Councillor Pitcher responded,
“We are withholding the legal advice in relation to procurement since we consider that the exemption provided by Section 42 of the Freedom of Information Act applies. Section 42(i) provides an exemption on the disclosure of information in respect of which a claim of legal professional privilege (LPP) could be maintained in legal proceedings.
“ICO guidance states that, ‘The clients ability to speak freely and frankly with his or her legal adviser (including in-house lawyers) in order to obtain appropriate legal advice is a fundamental requirement of the English Legal System. The concept of LPP protects the confidentiality of communications between a lawyer and client. This helps to ensure complete fairness in legal proceedings”.
“The ‘advice privilege’ applies where no litigation is in progress or contemplated. It covers confidential communications between client and lawyer, made for the dominant (main) purpose of seeking or giving legal advice. A communication under this exemption includes letters, reports, emails, notes of conversations etc”.
“The dominant purpose of the communication was to seek legal advice. Disclosure of the documentation may affect future frankness between lawyer and client, and is therefore likely to prejudice discussions. It is important to note that this information has not been made public previously and therefore LPP has not been lost or waived already”.
“Whilst Allerdale Borough Council would wish to be as transparent as possible we consider that the public interest in this case is best served by engaging the exemption and by not disclosing the information”.
“The Information Commissioners decision in respect of Peterborough’ decision to withhold legal advice states that ‘the public interest in disclosing the information in this case does not outweigh the public interest in maintaining the exemption’. The legal advice was not disclosed under FOI”.